UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
September 30, 1999
The opinion of the court was delivered by: Simandle, District Judge:
HON. JEROME B. SIMANDLE
This matter is before the court on plaintiff Angel Carrion's motion to amend or alter a judgment, pursuant to Federal Rule of Civil Procedure 59(e). By Memorandum Opinion and Order filed on December 23, 1998, the court granted defendant David Jenkins' motion for summary judgment and dismissed Carrion's Bivens action with prejudice. Carrion now seeks reconsideration of that ruling. The court will treat Carrion's motion as one for reargument under Local Civil Rule 7.1(g). See NL Indus. v. Commercial Union Ins. Co., 935 F. Supp. 513, 515-16 (D.N.J. 1996)(noting similarity of motion to alter judgment under Rule 59(e) and motion for reargument under the predecessor of Local Civil Rule 7.1(g)). For reasons discussed below, the court will deny Carrion's motion for reargument. The court further finds that even if it were to grant reargument, the case should be dismissed on grounds of Carrion's refusal to answer questions at his deposition in violation of Rule 37(b)(2)(C), Fed. R. Civ. P.
A. Motion for Reargument
A motion for reargument (often referred to as a "motion for reconsideration") under Local Civil Rule 7.1(g) will be granted only when "dispositive factual matters or controlling decisions of law" were presented to the court but not considered. McGarry v. Resolution Trust Corp., 909 F. Supp. 241, 244 (D.N.J. 1995) (citing Pelham v. United States, 661 F. Supp. 1063, 1065 (D.N.J. 1987)). "The standard of review involved in a motion for reargument is quite high, and therefore relief under this rule is granted very sparingly." United States v. Jones, 158 F.R.D. 309, 314 (D.N.J. 1994) (citing Maldonado v. Lucca, 636 F. Supp. 621, 630 (D.N.J. 1986)). "A party seeking reconsideration must show more than disagreement with the [c]court's decision, and `recapitulation of the cases and arguments considered by the court before rendering its original decision fails to carry a moving party's burden." G-69 v. Degnan, 748 F. Supp. 274, 275 (D.N.J. 1990)(quoting Carteret Savings Bank, F.A. v. Shushan, 721 F. Supp. 705, 709 (D.N.J. 1989)). Only where the district court "overlooked" matters that might have led to a different result had they been considered will a motion for reconsideration be granted. Id.
Carrion argues that reconsideration is appropriate in the present case because: (1) the court improperly relied on a Bureau of Prisons ("BOP") incident report and determined that his injuries were de minimis without permitting him the opportunity to obtain pertinent medical records from the BOP through discovery; (2) the court failed to consider the extent of his mental injuries in combination with his physical injuries; and (3) the court failed to consider Jenkins' state of mind in resorting to the use of force to discipline Carrion. For reasons explained below, however, the court finds that, even if it were to grant Carrion's motion for reargument, this case would nonetheless be dismissed on grounds of Carrion's violation of Rule 37(b)(2)(C) for refusal to follow a direct judicial order to answer questions put to him during his deposition.
In its previous opinion in this case, the court recognized that Carrion need not prove a significant physical injury resulting from Jenkins' use of force against him on September 3, 1997 to establish an Eighth Amendment violation. See Carrion v. Jenkins, Civil Action No. 97-5298, slip op. at 7 (D.N.J. Dec. 23, 1998)(citing Hudson v. McMillian, 503 U.S. 1, 9 (1992)). Rather, the court acknowledged that the extent of Carrion's injuries was but one factor to consider in determining whether Jenkins' use of force was necessary or reflected a wanton and willful infliction of harm, along with the need for the application of force, the degree of force used in relation to the need, the threat Carrion posed to Jenkins, and any effort made to restrain or mollify the amount of force used. Id. The court also acknowledged that "not every malevolent touch by a prison guard gives rise to a federal cause of action." Id.
Accepting as true Carrion's account of the altercation with Jenkins, including his description of his injuries, the court determined that Jenkins' use of force was de minimis and, therefore, did not rise to the level of a constitutional violation. Id. at 8-9. In making this determination, the court considered the nature and degree of Carrion's physical and mental injuries, as well as Jenkins' state of mind, all as claimed by Carrion himself. Id. With regard to Carrion's injuries, including alleged internal injuries to the stomach, liver and kidneys as well as alleged psychological injuries, the court was impressed by the undisputed fact that Carrion did not require significant medical attention as a result of the altercation with Jenkins. Nothing Carrion has raised in his moving papers alters this impression. With regard to Jenkins' state of mind, the court found, again relying on Carrion's own allegations, that Jenkins intended to bully and intimidate Carrion, but that he could not be shown to have intended to injure or brutalize Carrion. Once again, nothing Carrion has raised in his current moving papers alters those facts.
In sum, Carrion has not met his burden of demonstrating that the court "overlooked" a dispositive factual matter or a controlling decision of law. This court carefully considered Carrion's claim in the light most favorable to Carrion and determined, after applying the controlling law to Carrion's account of the facts, that Jenkins' conduct, while inappropriate, did not rise to the level of wanton infliction of harm required to prove a constitutional violation under the Eighth Amendment.
B. Dismissal for Failure to Provide Court-Ordered Discovery
Additionally, the court finds that, even if Carrion's motion for reargument were granted, his case should be dismissed for Carrion's refusal to answer questions put to him during a deposition on June 24, 1998, and for refusing a direct judicial order to do so. Defendant had originally moved for dismissal on this ground, but the court declined to address it due to the disposition of plaintiff's Eighth Amendment claim upon the merits. *fn1
The record before the court upon this aspect of defendant's dismissal motion reveals that Carrion refused to answer the government's deposition questions even after being warned that by refusing he was courting dismissal of his complaint. Carrion was deposed at Fort Dix, F.C.I., by Assistant United States Attorney J. Andrew Ruymann ("Ruymann"). During Ruymann's questioning, Carrion refused to answer questions relating to conversations that he may have had with other prisoners who may have assisted him in the preparation of his case. (Declaration of J. Andrew Ruymann dated September 21, 1998 at 2.) After Carrion refused to answer the questions relating to who, if anyone, assisted him in the litigation, Ruymann placed a phone call to the chambers of Honorable Robert B. Kugler, U.S.M.J. Id. Ruymann advised Judge Kugler of Carrion's refusal to answer, and that Carrion was asserting the attorney-client privilege to such matters. (Id.; Letter of Hon. Robert B. Kugler dated June 25, 1998 ("Kugler Ltr.") at 1.) Carrion then spoke directly to Judge Kugler, informing him that he would not answer any questions about with whom he had discussed the incident. (Kugler Ltr. at 1.) When Judge Kugler asked why he refused, he responded that he feared retaliation against those inmates with whom he had discussed his case, but said nothing of attorney-client privilege. Id. Judge Kugler twice informed Carrion that this was not grounds to refuse to answer, and twice directed Carrion to answer the questions put to him. Id. Carrion refused to answer, and told Judge Kugler that he would have to hold him in contempt. Id. Judge Kugler then advised Carrion that if he didn't answer the questions then he risked dismissal of the complaint. Id. Carrion still refused to answer, and declared that he would appeal any dismissal. Id. Judge Kugler then concluded the phone call by instructing Ruymann to place on the record that Carrion's objections were overruled and that Carrion had been advised that his refusal to answer could lead to dismissal of his case. (Id.; Carrion Deposition Transcript at 46:8 to 48:24.)
The central question here is whether Carrion's refusal of a direct court order to answer questions put to him at his deposition warrants the dismissal of all his claims. Federal Rule of Civil Procedure 37(b) provides that if a party fails to obey an order to provide or permit discovery, the court may make such orders "as are just," including:
an order striking out pleadings or part thereof or staying further proceedings until the order is obeyed or dismissing the action or proceeding or any part thereof or rendering a judgment by default against the disobedient party. Fed. R. Civ. P. 37(b)(2)(C).
An order of dismissal under Rule 37 is the harshest of all sanctions available to district courts, but must be available to district courts in appropriate cases both to penalize those whose conduct warrants it, and as a deterrent to those that may be tempted to such conduct. National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639 (1976). The fact that Carrion has pursued this case pro se is considered in enforcing this court's orders to the extent that it must be determined whether the unrepresented litigant was aware of his obligations under the court's directives, including the consequences on non-compliance, at least in general terms. While pro ses generally are afforded more lenient treatment than those represented by counsel, "all litigants, even pro ses, have an obligation to comply with court orders. When they flout that obligation, they must suffer the consequences of those actions." McDonald v. Head Criminal Court Supervisor Officer, 850 F.2d 121, 123 (2d Cir. 1988).
In Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863 (3d Cir. 1984), the Third Circuit set forth the factors to be considered in determining whether default judgment or dismissal under Rule 37 is warranted. These factors include: (1) the extent of the party's personal responsibility for noncompliance; (2) prejudice to the adversary; (3) history of dilatoriness; (4) whether the conduct of the party was willful or in bad faith; (5) effectiveness of alternative sanctions, and ; (6) the meritoriousness of the claim to be struck. Poulis, 747 F.2d at 867-68. Not all of these six factors need be met in order for a district court to find that dismissal is warranted. Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1988), cert. denied, 488 U.S. 1005 (1989).
Accordingly, the court will assess Carrion's refusal to answer in light of the factors listed in Poulis. In this case, Carrion refused to answer questions put to him by the government at his deposition, continually objected to the questions, and asserted the attorney client privilege with respect to "everybody in the law library." (Carrion Dep. Tr. at 45:20.) After Judge Kugler told him that his objection was overruled, and that further refusals could result in dismissal of his case under Rule 37, Carrion still refused to answer, and stated that he would appeal any dismissal.
The record reveals nothing to indicate that Carrion did not understand the substance of Judge Kugler's ruling, nor is there an indication that he did not understand that he risked dismissal of his complaint by refusing to answer. To the contrary, Carrion was blunt in his defiance of Judge Kugler's order, stating that he would appeal any dismissal. Given the fact that Carrion refused, under threat of dismissal, a direct court order to answer the government's deposition questions, the court finds that Carrion was personally responsible for failing to obey Judge Kugler's directive. Thus, the first Poulis factor tilts in favor of dismissal. Accord Baba v. Japan travel Bureau International, Inc., 165 F.R.D. 398 (S.D.N.Y. 1996) (dismissing pro se litigant's case for refusal to comply with court's order to answer deposition questions).
Noncompliance with court orders is considered wilful under Rule 37 when the court's orders have been clear, when the party has understood them, and when non-compliance is not due to factors beyond the party's control. See Societe Internationale Pour Participations Industrialist et Commercials v. Rogers, 357 U.S. 197, 221 (1958). Here, Judge Kugler's order was clear, and Carrion's refusal was wilful and entirely within his control. For this reason, the fourth factor in Poulis also tilts in favor of dismissal.
Regarding the second Poulis factor, the government has been prejudiced by plaintiff's failure to respond to the series of deposition questions designed to elicit information about the identity of other persons with knowledge of relevant facts regarding Carrion's claim. With whom did he discuss the events in question? What did he say to fellow inmates before and after the encounter with Jenkins? With whom did he discuss his alleged injuries? Responsive answers to these and similar questions would be vital to probing Carrion's version of these disputed events, and his refusals to answer were prejudicial. The second Poulis factor thus tilts toward dismissal.
As to the sixth Poulis factor, the court finds that the claim to be struck is not meritorious for reasons already expressed in the December 23rd Opinion and in Part A, above.
The court has considered the effectiveness of lesser sanctions, as required by the fifth Poulis factor, and found that none would be appropriate. The continued refusal of the plaintiff to supply court-ordered information would not be remedied by yet another court order, nor by an order precluding his calling of unnamed witnesses at trial, because of the nature of the prejudice to the defendant in being deprived of this discoverable information, as discussed above. Dismissal was the sanction of which plaintiff was warned if his misconduct continued, and it is the appropriate sanction.
As to the history of dilatoriness, which is the third Poulis factor, the record is unremarkable one way or the other. Plaintiff at various times has prolonged the proceedings by involving the court in other disputes which are most often resolved without the necessity of motion practice, as reflected in many of the 106 items present on this case's docket sheet before defendant's summary judgment motion was granted in December 1998. Overall, however, it does not appear that Carrion previously disobeyed orders to provide discovery, thus this factor is regarded as neutral.
The court finds that the satisfaction of the Poulis factors discussed above warrants dismissal of Carrion's complaint. Carrion refused to comply with the direct and unmistakable order of Judge Kugler, and was made aware of the likely consequence of his noncompliance. For this reason, this court holds that the defendant has sustained his burden of demonstrating that plaintiff's complaint is the appropriate remedy for wilful disobedience of the Magistrate Judge's lawful directive to answer questions put to him at his deposition.
For these reasons, the court denies Carrion's motion for reconsideration, finding no Eighth Amendment violation. Furthermore, the court grants defendant's motion to dismiss due to plaintiff's failure to provide court-ordered discovery under Rule 37(b)(2)(C), Fed. R. Civ. P. The accompanying Order is entered.
JEROME B. SIMANDLE U.S. District Judge
THIS MATTER having come before the court on plaintiff Angel Carrion's motion to amend or alter a judgment, pursuant to Federal Rule of Civil Procedure 59(e), which the court construes as a motion for reargument under Local Civil Rule 7.1(g) of the court's December 23, 1998 Memorandum Opinion and Order granting defendant David Jenkins' motion for summary judgment and dismissing Carrion's Bivens action with prejudice; and the court having considered the submissions of the parties, and for the reasons set forth in the accompanying Memorandum Opinion;
IT IS on this 30th day of September, 1999, hereby ORDERED that plaintiff Angel Carrion's motion for reargument is DENIED; and
IT IS FURTHER ORDERED that defendant's motion to dismiss the complaint pursuant to Rule 37(b)(2)(C), Fed. R. Civ. P., is GRANTED and the case is dismissed with prejudice.
JEROME B. SIMANDLE U.S. District Judge