Opinion
02 Civ. 0914 (RCC) (RLE).
August 10, 2006
OPINION AND ORDER
I. INTRODUCTION
Pro se plaintiff, Reuben Avent, commenced this action on February 6, 2002, against defendants, Superintendent Nicholas Solfaro, Sergeant John Gentillo, and Correctional Officer Evan Washington of the Rockland County Correctional Facility, for alleged civil rights violations under 42 U.S.C. § 1983. Pending before the Court is Avent's motion for attorney's fees and sanctions for defendants' alleged discovery misconduct under 28 U.S.C. § 1927. For the reasons which follow, Avent's motion is DENIED and defendants shall provide a supplemental response to Avent's motion for sanctions by August 18, 2006.
II. DISCUSSION
A. The Legal Standard"The court has inherent power to sanction parties and their attorneys, a power born of the practical necessity that courts be able to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." Revson v. Cinque Cinque, P.C., 221 F.3d 71, 79 (2d Cir. 2000) (citation and internal quotations omitted); see also Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976). The Court may impose sanctions and assess attorney's fees if a party has "acted in bad faith, vexatiously, wantonly, or for oppressive reasons." Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 258-59 (1975). Under § 1927, "[a]ny attorney . . . 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. Bad faith is required for the imposition of sanctions. United States v. Int'l Brotherhood of Teamsters, 948 F.2d 1338, 1345 (2d Cir. 1991). Notice must be provided before sanctions are imposed. Schoenberg v. Shapolsky Publishers, Inc., 971 F.2d 926, 936 (2d Cir. 1992).
B. Motion for Sanctions
This is not Avent's first motion for sanctions and attorney's fees. On October 15, 2002, the Court denied a motion for sanctions filed by Avent on July 19, 2002. On July 3, 2003, Avent renewed his request that the Court direct defendants to pay litigation expenses and attorney's fees. The Court denied this motion on August 20, 2004.
In the pending motion for sanctions Avent outlines the lengthy procedural history of this case, and comments generally on his disagreements with defendants counsel. More substantively, Avent contends that defendants have 1) made misrepresentations in their discovery motions and pleadings, some of which resulted in the denial of his prior discovery motions and applications; 2) manufactured evidence; and 3) delayed or failed to disclose records, thus, blocked him from obtaining evidence. Avent's Memorandum in Support of Motion for Sanctions, dated March 26, 2006, ("Mot.") at 2.
1. Prior Applications and Motions
Avent argues that defendants' misrepresentations have continuously resulted in the Court's denial of his applications and motions, including his motion to compel discovery, and to amend the complaint. For their part, defendants argue that collateral estoppel preclude Avent from litigating the same issues raised in prior applications. Because Avent's motion covers matters already addressed by the Court in prior decisions, it will be construed and treated as a motion for reconsideration.
The Court's prior decisions include: Opinion and Order, dated October 9, 2002 (denying Avent's application for appointment of counsel; motion to strike defendants' affirmative defenses and answer; motion to compel discovery; and motion for sanctions); Order, dated December 4, 2002 (concerning Avent's production for deposition purposes); Orders, dated December 11, 2002, and January 15, 2003 (concerning Avent conducting depositions); Opinion and Order, dated June 12, 2003 (denying Avent's motion to amend the complaint); Opinion and Order, dated August 20, 2004 (denying Avent's application for appointment of counsel, and application for attorneys fees).
a. The Legal Standard for Reconsideration
Avent may move for reconsideration of a Court decision on the basis of "mistake, inadvertence, surprise, or excusable neglect." Rule 60(b)(1), Federal Rules of Civil Procedure. He must outline "the matters or controlling decisions which counsel believes the court has overlooked." Local Rule 6.3. Reconsideration is merited if Avent can "demonstrate that the Court overlooked controlling decisions or factual matters that were put before it on the underlying motion." Shamis v. Ambassador Factors Corp. , 187 F.R.D. 148, 151 (S.D.N.Y. 1999). The matters must "reasonably be expected to alter the conclusion reached by the court." Davidson v. Scully, 172 F. Supp. 2d 458, 461 (S.D.N.Y. 2001). "Local Civil Rule 6.3 should be narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the court." Id. at 462 (citation and internal quotations omitted).
b. Reconsideration of the Court's Prior Decisions and Adjudications
Although the Court evaluates the pending motion with the liberality afforded pro se litigants, Haines v. Kerner, 404 U.S. 519, 520 (1972), "bald assertions and conclusions of law will not suffice to state a claim." Tarshis v. Riese Org., 211 F.3d 30, 35 (2d Cir. 2000). Avent does not point to any evidence in support of his contention that defendants' alleged misrepresentations adversely effected the outcome of his prior applications. He must proffer more than unsupported and conclusory allegations in support of this contention. He has failed to point to any evidence or facts which were presented to the Court on the underlying applications and motions which were overlooked. Nothing in the pending motion suggests that the Court's previous decisions were wrongly decided. Moreover, since the Court's decisions date from 2002, 2003, and 2004, the motion for reconsideration is untimely. To the extend that the pending motion seeks reconsideration of the Court's prior decisions, Avent's request is DENIED. See Shamis, 187 F.R.D. at 151.
2. Mispresentations
Avent argues that defendants have "brought very serious false allegations and misrepresentations and committed abusive litigation misconduct." Mot. at 2. Although not clearly articulated, it appears that Avent is arguing that defendants failed to disclose their involvement in another litigation in their response to document requests and interrogatories. Mot. at 29. Defendants "specifically stat[ed] there [were] no civil or administrative allegations existing against any defendants or Rockland County [Correctional Facility]." Id. However, it appears that the correctional facility and its officers were involved in other litigation — namely, Washington v. County of Rockland, 211 F. Supp. 2d 507 (S.D.N.Y. 2002), aff'd, 373 F.3d 310 (2d Cir. 2004).
Avent maintains that he is entitled to additional discovery records in light of Washington. In Washington, corrections officers sued county and county jail officials, alleging malicious prosecution, racial discrimination, and retaliation for assertion of First Amendment rights. For their part, defendants argue that records concerning Washington are not relevant to this case because unlike the plaintiffs in that case, Avent is not a correctional officer, and he is not alleging racial discrimination or malicious prosecution.
Since the pending motion is one for sanctions for alleged discovery misconduct, and not a motion to compel, the Court does not reach the issue of whether Avent is entitled to additional discovery records in light of Washington. However, defendants have failed to address Avent's claim concerning the failure to disclose their involvement in Washington pursuant to document requests and interrogatories. Based on the parties' submissions, the Court cannot determine whether or not Avent's interrogatories asked defendants to disclose their involvement in other cases, and if so, whether defendants disclosed their participation in Washington. Defendants shall submit a supplemental memorandum addressing this issue by August 18, 2006.
3. Manufactured and Altered Discovery Records
Avent argues that defendants have manufactured and altered discovery records. Although not clearly articulated, he appears to contend that at least one document, a grievance report, has been substantially altered. He argues that an original grievance report charged him with refusing to leave his cell and kicking his cell door, but a recently disclosed report indicates that he was loud, abusive, and aggressive towards a correctional officer during a discussion. Both grievance reports have the same incident date, July 23, 2001. Mot. at 31. Compare Grievance Report, attached to Mot. as Exh. D, with Grievance Report, attached to Mot. as Exh. E. Defendants have failed to address this claim. Based on the parties' submissions, the Court cannot determine whether or not defendants manufactured or altered discovery records. Defendants shall submit a supplemental memorandum addressing this issue, and explaining in detail the circumstances surrounding the creation of these two exhibits by August 18, 2006.
4. Delay and Failure to Disclose Discovery Records
Avent argues that defendants have consistently delayed the production of records or failed to disclose discovery. He outlines the procedural history of this action to show the delays associated with receiving responses from defendants. For instance, Avent served defendants with the complaint on March 27, 2002, but they did not file an answer until June 19, 2002. Also, while Avent filed the pending motion on April 4, 2006, defendants, after obtaining court approval, filed an opposition on July 5, 2006. Defendants maintain that on some occasions, the delay results because they did not receive Avent's submissions.
Avent further contends that defendants' March 17, 2003 discovery production was incomplete. Mot. at 29. For their part, defendants argue that, at least with respect to the video tape recordings which Avent seeks, discovery records do not exist. They aver a commitment to litigating this case in good faith. Since Avent has failed to show that defendants' delays are in bad faith, Revson, 221 F.3d at 79, sanctions under § 1927 are not warranted.
4. Cross-Motion for Sanctions
Defendants request that the Court award them reasonable expenses, including attorney's fees, incurred in opposing Avent's motion for sanctions under Rule 37(a)(4)(B), Federal Rules of Civil Procedure. Since claims raised in Avent's motion remain outstanding, the Court does not reach this issue.
III. CONCLUSION
For the foregoing reasons, Avent's motion for attorney's fees and sanctions under § 1927 is DENIED. Defendants, however, shall submit a supplemental memorandum by August 18, 2006, addressing Avent's allegations concerning 1) the failure to disclose their participation in Washington v. County of Rockland, 211 F. Supp. 2d 507 (S.D.N.Y. 2002), and 2) the alteration of grievance reports.
SO ORDERED.