The opinion
c
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION
MARCO DAMON DUNCAN, CIVIL DOCKET NO. 1:17-CV-1623-P
Plaintiff
VERSUS JUDGE DRELL
JOSE NUNEZ, , MAGISTRATE JUDGE PEREZ-MONTES
Defendants
MEMORANDUM ORDER
Before the Court is a Motion for Sanctions for Discovery Abuse (Doc. 202) filed
by Plaintiff Marco Damon Duncan (“Duncan”) (#37679-048). Duncan is an
inmate in the custody of the Federal Bureau of Prisons incarcerated at the United
States Penitentiary in Florence, Colorado.
Because there is no evidence that Defendants have abused the discovery
process or that inconsistencies in response to discovery were willfully or intentionally
false or misleading, Duncan’s Motion for Sanctions for Discovery Abuse (Doc. 202) is
DENIED.
I. Background
Duncan initiated this litigation pursuant to Bivens v. Six Unknown Agents of
the Federal Bureau of Narcotics1 (Docs. 1, 16, 20) alleging that he was subjected to
1In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971), the Supreme Court recognized that certain circumstances may give rise to a private
cause of action against federal officials that is comparable to the statutory cause of action
permitted against state officials by 42 U.S.C. § 1983.
excessive force when he was incarcerated at the United States Penitentiary in
Pollock, Louisiana.
Duncan seeks sanctions under Fed. R. Civ. P. 37(c), 28 U.S.C. § 1927, and the
Court’s inherent authority, for Defendants’ alleged failure to truthfully answer
Duncan’s discovery requests. (Doc. 202, pp. 1-3). Specifically, Duncan contends
Defendants responded to initial discovery with allegedly false statements which were
later corrected after Duncan was forced to file repeated discovery requests. (Doc. 202,
p. 3).
II. Law and Analysis
As with Rule 26(a)(1) initial disclosures, parties and their attorneys have a
duty to timely supplement or correct answers to discovery if they learn “that in some
material respect the disclosure or response is incomplete or incorrect, and if the
additional or corrective information has not otherwise been made known to the other
parties during the discovery process or in writing.” Fed. R. Civ. P. 26(e)(1)(A).
Additionally, for the purposes of Rule 37(a), an evasive or incomplete disclosure,
answer, or response must be treated as a failure to disclose or respond. Fed. R. Civ.
P. 37(a)(4).
Answers to interrogatories must be in writing, under oath, and signed by the
person answering them. Fed. R. Civ. P. 33(b). In addition, Rule 26(g)(1) requires that
“[e]very disclosure . . . and every discovery response . . . be signed by at least one
attorney of record . . . or by the party personally, if unrepresented.” Fed. R. Civ. P.
26(g)(1). By signing, an attorney certifies – to the best of the attorney’s knowledge,
information, and belief formed after a reasonable inquiry – that a discovery response
is “consistent with these rules and warranted by existing law or by a nonfrivolous
argument . . ., not interposed for any improper purpose.” Fed. R. Civ. P. 26(g)(1)(B).
“If a certification violates [Rule 26(g)] without substantial justification, the court . . .
must impose an appropriate sanction on the signer, the party on whose behalf the
signer was acting, or both.” Fed. R. Civ. P. 26(g)(3). Likewise, a party is subject to
sanctions under Rule 37(c)(1) if the “party fails to provide information or identify a
witness as required by Rule 26(a) or (e), . . . unless the failure was substantially
justified or is harmless.” Fed. R. Civ. P. 37(c)(1).
Section 1927 states:
Any attorney or other person admitted to conduct cases in any court of
the United States or any Territory thereof who so multiplies the
proceedings in any case unreasonably and vexatiously may be required
by the court to satisfy personally the excess costs, expenses, and
attorneys’ fees reasonably incurred because of such conduct.
28 U.S.C. § 1927. To award sanctions under § 1927, the court must find the
sanctioned attorney both “unreasonably” and “vexatiously” multiplied the
proceedings. See F.D.I.C. v. Calhoun, 34 F.3d 1291, 1297 (5th Cir. 1994). To satisfy
this burden, a court must have “evidence of bad faith, improper motive, or reckless
disregard of the duty owed to the court.” Procter & Gamble Co. v. Amway Corp., 280
F.3d 519, 525 (5th Cir. 2002). This standard, which “focuses on the conduct of the
litigation and not on the merits,” requires “clear and convincing evidence ‘that every
facet of the litigation was patently meritless.’” Bryant v. Military Dep't of Miss., 597
F.3d 678, 694 (5th Cir. 2010) (quoting Procter & Gamble Co., 280 F.3d at 526).
Furthermore, sanctions under § 1927 are punitive in nature, and courts have strictly
construed § 1927 so as not to dampen “the legitimate zeal of an attorney in
representing her client.” Browning v. Kramer, 931 F.2d 340, 344 (5th Cir. 1991).
Duncan asserts a Second Set of Interrogatories were propounded on Defendant
Morris on May 1, 2019. (Doc. 202-1, p. 1). Duncan contends Morris’s June 12, 2019
response to Interrogatory No. 7 provided a false statement, as shown by Defendants’
Admissions to Duncan’s Fourth Request for Admissions Nos. 7-9. (Doc. 202-1, p.1;
Doc. 202-2, pp. 1-6).
Specifically, Morris’s initial response to Duncan’s Interrogatory No. 7 was that
Morris “was not involved in transporting the Plaintiff to Oakdale and thus, do[sic]
not have a personal recollection of the individuals transporting Plaintiff to Oakdale.”
(Doc. 202-2, p. 1). Morris’s responses to Duncan’s Fourth Request for Admissions
Nos. 7-9 (Doc. 202-2, pp. 1-6) were as follows:
Request 7: Please admit that the three (3) Officers who transported the
plaintiff to FCI Oakdale on 1-13-2017, did not document in any
memorandum that they had in fact transported the plaintiff.
Response: Admitted.
Request 8: Please admit that defendant Morris was present in the
transport van directly behind the plaintiff’s, at FCI Oakdale on 1-13-
2017, as the plaintiff was escorted out of the van and into the Oakdale
facility.
Response: Objection. This request is vague and a compound question.
Defendants cannot determine if Plaintiff is asserting the Lt. Morris was
sitting directly behind him in the transport van or if Plaintiff is
asserting that Lt. Morris was in another vehicle. Subject to the
objection, defendant Morris admits he was one of the team of staff
members that transported Plaintiff to FCI Oakdale.
Request 9: Please admit that defendant Morris knows the identity of the
three officers whom transported the plaintiff to Oakdale on 1-13-19[sic].
Response: It is admitted that Lt. Morris can find out the name of the
transporting officers.
(Doc. 202-2, pp. 3-4).
Duncan further asserts a First Set of Interrogatories were propounded on
Defendant Nunez on March 18, 2019, to which he responded on April 16, 2019. (Doc.
202, p. 2, 8). Duncan alleges Nunez’s responses were false, as demonstrated by
Defendants’ response to Duncan’s Third Request for Admissions No. 22. (Doc. 202,
p. 2, 9). Specifically, Nunez’s response to Request 8 stated that he “was not inside
the holding cell in R&D while Plaintiff was being [m]edically assessed by Defendant
Bordelon on January 13, 2017.” (Doc. 202-2, p. 8). Nunez’s response to Duncan’s
Third Request for Admissions No. 22 stated:
Request for Admission 22: Please admit that defendant Morris observed
defendant Nunez inside of the holding cell at USP-P on 1-13-2017, while
the plaintiff[sic] medical assessment was being conducted.
Response to Request for Admission 22: Admitted.
(Doc. 202-2, p. 9).
Duncan further contends Defendants’ counsel signed and certified that each
discovery response was both complete and correct. (Doc. 202, p. 3). Duncan claims he
was forced to file repeated discovery requests due to Defendants’ failure to truthfully
answer discovery requests. (Doc. 202, p. 3). Duncan seeks to sanction Nunez and
Morris for giving false and misleading interrogatory responses and certifying those
responses in bad faith. (Doc. 202-1, p. 4).
Defendants assert that inconsistencies in responses are not grounds for
sanctions and do not violate discovery provisions. (Doc. 216), p. 1). Defendants state
that one of the inconsistencies is due to a typographical error in that Morris rode in
the van to Oakdale with White – not with Duncan as stated in response to Request 8
of Duncan’s Fourth Request for Admissions. (Doc. 216, p. 1). Defendants assert that
other documents previously provided to Duncan, such as Morris’s statement, shows
Morris was in the van with White. (Docs. 216, p. 2; 216-1, p. 1). Morris’s statement,
dated January 13, 2017, states that Morris “was the Lieutenant in charge for
transporting inmate White from USP Pollock to FCC Oakdale.” (Doc. 216-1, p. 1).
Defendants did not respond to Duncan’s contentions regarding Nunez’s responses.
However, Defendants argue Duncan’s motion is harassing and frivolous and should
be stricken or dismissed. (Doc. 216, p. 2). The Court has already acknowledged the
harassing nature of Duncan’s discovery motions and entered a protective order
preventing further filing of motions without leave of court. (Doc. 231).
Here, there is no dispute that there were inconsistencies in the above-
mentioned discovery responses by Morris and Nunez. However, the record shows
Defendants have corrected those deficiencies through supplemental responses and
the response to this motion. There is no evidence that such inconsistences warrant
the imposition of sanctions against Defendants or Defendants’ counsel. Duncan has
not been prejudiced by Defendants’ responses, as substantial discovery has taken
place and the Court has allowed – and to an extent granted – Duncan’s numerous
discovery related motions.2
Although certainly Defendants should have performed their due diligence in
responding to each discovery request, there is no evidence of intentionally false or
willfully misleading responses. Rather, Defendants – upon realizing the
inconsistencies – made efforts to remedy and supplement their responses.3 Notably,
the Court observes that the substantial discovery and related motion practice on both
sides has reasonably caused confusion, particularly with Defendants in responding
to Duncan’s voluminous discovery requests. Duncan will have every opportunity to
disprove or contest Defendants’ evidence at trial, and Defendants will be bound by
their representations in discovery.
III. Conclusion
Because there is no evidence that Defendants have abused the discovery
process or that inconsistencies in response to discovery were willfully or intentionally
false or misleading, Duncan’s Motion for for Sanctions for Discovery Abuse (Doc. 202)
is DENIED.
2 The Court is considering a motion for additional discovery and the Court will bear in mind
the need for any potential discovery.
3 The Court does not take discovery disputes or contradictions lightly. Any time the Court
sees contradictory discovery responses, the responses are carefully scrutinized to determine
whether they are willful or prejudicial.
THUS DONE AND SIGNED in Alexandria, Louisiana, on this _5th# day of
November 2019.
~ a“
JOSEPH H.L. PEREZ-MONTES
UNITED STATES MAGISTRATE JUDGE