Opinion
C. A. 3:21-3649-JFA-SVH
02-17-2023
Bryant Braxton, Plaintiff, v. Leon Lott, in his representative capacity for the Office of the Richland County Sheriff, and Mike Wenzell, Jason Cuzzupe, and D. McRoberts, in their individual capacities, Defendants.
REPORT AND RECOMMENDATION AND ORDER
Shiva V. Hodges, United States Magistrate Judge.
Bryant Braxton (“Plaintiff”) alleges that he was arrested without probable cause on January 24, 2020, and has sued the Richland County Sheriff's Department (“RCSD”) and select RCSD employees Mike Wenzell (“Wenzell”), Jason Cuzzupe (“Cuzzupe”), and D. McRoberts (“McRoberts”) (collectively “Defendants”). Defendants seek dismissal of Plaintiff's case against them, arguing dismissal is warranted pursuant to the court's inherent powers and Fed.R.Civ.P. 37 based on Plaintiff's “bad faith . . . perjurious deposition testimony.” [ECF No. 27-1 at 1].
Plaintiff, proceeding with counsel, filed the instant case in the Richland County Court of Common Pleas, asserting state law claims of false arrest, battery, negligence, abuse of process, and malicious prosecution pursuant to the South Carolina Tort Claims Act, as well as a claim pursuant to 42 U.S.C. §1983 for violation of his Fourth Amendment rights to be free from unreasonable seizures and arrests. Defendants removed the case to this court on November 5, 2021. [See ECF No. 1].
This matter is before the court on Defendants' motion to dismiss. [ECF No. 27]. Having been fully briefed [ECF Nos. 36, 43], the motion is ripe for disposition. Also before the court are Defendants' motion for an order to show cause, motion for extension of time for limited discovery, and motion for physical examination of Plaintiff. [ECF Nos. 28, 29, 30].
All pretrial proceedings in this case were referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(f) (D.S.C.). For the following reasons, the undersigned denies Defendants' motion for extension of time and motion for physical examination and recommends the District Judge deny Defendants' motion to dismiss and motion to show cause. I. Factual and Procedural Background
The parties do not dispute many of the relevant facts underlying Plaintiff's instant claim. [See, e.g., ECF No. 27-1 at 1 (“The factual background is generally not in dispute.”)]. As Plaintiff alleges, and as relevant here, Plaintiff was working on January 15, 2020, when RCSD deputies were dispatched to a home in Richland County at 532 Atterbury Drive (“532 Atterbury”) regarding possible narcotics activity. [ECF No. 1-1 ¶¶ 5-6, see also, e.g., ECF No. 27-2]. The deputies observed a black male, approximately 5'8”/5'10” wearing teal shorts and no shirt and carrying a gray/black bookbag, running from the back of the house and jumping over the fence. [ECF No. 1-1 ¶ 6]. The description was sent out over dispatch to other RCSD deputies. Id.
Wenzel was in the area when the description came in over the radio and texted a photograph of Plaintiff to McRoberts, who was at the scene with Cuzzupe; Plaintiff alleges that Wenzel “indicated he had dealt with Mr. Braxton on a previous occasion.” Id. ¶¶ 6-7. McRoberts reviewed the photograph and determined the fleeing suspect to be Plaintiff. [ECF No. 1-1 ¶ 7, see also ECF No. 36-4 at 2 (Cuzzupe's statement stating “[t]he subject Bryant Braxton is known to frequent 532 Atterbury Dr. as previous reports have put the subject at that location. Braxton's ID was confirmed by Capt. McRoberts when viewing his Jail Photo.”)]. A search of the area revealed a gray/black bookbag containing marijuana and a small pistol. [ECF No. 1-1 ¶ 7].
Plaintiff clarifies Wenzel “had dealt with Plaintiff approximately two years prior to this incident.” [ECF No. 1-1 ¶ 7].
On January 22, 2020, Cuzzupe applied for, and received, arrest warrants, providing the following sworn affidavit in support:
That on or about 15 January 2020 while at 532 Atterbury Drive in the Uppertownship Magisterial District of Richland County, it is believed that the defendant did commit the crime of PWID Marijuana because the defendant willingly, and knowingly had in
his possession a gray backpack containing approximately 4 pounds of a green plant like material believed to be marijuana, and a black and green Sig Sauer Model P238 serial number: 528177954. The defendant was observed by law enforcement fleeing the residence with the gray backpack after deputies attempted a knock and talk at the defendant's residence for narcotics activity. The backpack was located in the area in which K9 attempted to track the defendant with negative results. The bag was also located in the area in which citizens called 911 dispatch reporting to seeing a suspicious person during the active search for the defendant.[ECF No. 27-2, ECF No. 1-1 ¶ 7].
Plaintiff was arrested at his place of work on January 24, 2020, for possession with intent to distribute marijuana and for unlawful carrying of a pistol. [ECF No. 1-1 ¶¶ 8-10]. The criminal charges against him were dismissed on December 10, 2020. Id. ¶¶ 8, 10. The instant suit eventually followed.
Regarding Plaintiff's association with 532 Atterbury, Cuzzupe testified at his October 11, 2022 deposition as follows:
Q: Okay. Did you know about the name Bryant Braxton before you went to the house?
A: I had heard the name before, yes.
Q: Okay. Did you hear it in relationship to that house?
A: We went to Atterbury 532, it was sometime prior, and there was a warrant for Mr. Braxton, and I had made contact with his brother, I believe, and he told me that Bryant wasn't there.
Q: At the Atterbury address?
A: Yes, I believe so.
Q: Okay. Is there any documentation to prove that?
A: No.
Q: Okay. You just remember that from how long ago?
A: It was sometime before this incident that had happened.
Q: Okay. And . . . what was the information you had about that?
A: It was that he may be living at that address, and when I went to that address, made contact with his brother who said that he was not there.
Q: . . . why were you trying to find him at that point?
A: He had warrants, and it was-I couldn't tell you exactly how long before that it was-but it was sometime prior to January of 2020.[ECF No. 27-3 at 33:18-34:21].
At his October 11, 2022 deposition, Plaintiff was shown multiple pictures of the inside and outside of 532 Atterbury and testified, in part, as follows:
Q: You were not at 532 Atterbury Drive on January 15, 2020?
A: No, sir.
Q: In fact . . . is it your . . contention here, you don't have anything to do with the house at 532 Atterbury Drive?
A: No, sir ....
Q: Have you ever been inside of 532 Atterbury drive?
A: No, sir ....
Q: Okay. You've never been on the property of 532 Atterbury Drive?
A: I've been on the street but not just the house. No, sir.
Q: You've not been at the house?
A: No, sir....[ECF No. 27-4 at 14:14-20, 19:14-18, 25:25-26:5].
However, on July 21, 2018, 18 months prior to the relevant events of January 2020, RCSD deputies reported to 532 Atterbury following complaints about the use of four-wheelers and dirt bikes, saw Plaintiff and his brother on the front porch, interviewed them, and arrested Plaintiff's brother for giving false information to the police. [See ECF No. 27-5, see also ECF No. 27-4 at 50:25-75:24]. Plaintiff avoided being detained by jumping the fence of the relevant property and running while officers were running a background check on him and his brother. [See ECF No. 27-5, see also ECF No. 27-4 at 50:2575:24].
The July 21, 2018 incident was recorded by body worn cameras worn by the RCSD deputies (“BWC footage”). [See ECF No. 27-5]. During Plaintiff's deposition, following his repeated testimony that he had no association with 532 Atterbury Drive, Defendant's counsel showed Plaintiff a still shot from the BWC footage, asked questions about it, and then provided 30 minutes of the footage itself, followed by additional questions. [ECF No. 27-4 at 50:25-75:24].
Neither the picture nor the footage had been produced in discovery, and prior to asking questions about each, Defendants' counsel informed Plaintiff and his counsel they could discuss the evidence privately. See id.
The court's applicable local civil rule provides:
Deposing counsel shall provide to opposing counsel a copy of all documents to be shown to the witness during the deposition, either before the deposition begins or contemporaneously with the showing of each document to the witness. If the documents are provided (or otherwise identified) at least seven (7) days before the deposition, then the witness and the witness's counsel do not have the right to discuss the documents privately during the deposition.
If the documents have not been so provided or identified, then counsel and the witness may have a reasonable amount of time to discuss the documents before the witness answers questions concerning the document.Local Civ. Rule 30.04(H) (D.S.C.) (emphasis added).
Following review of this evidence, Plaintiff identified that he was questioned by the police at 532 Atterbury, he was washing his truck at the time, he gave false information concerning who owned his truck, he did not provide his complete name to the officers, and he ran once he gave some identifying information because there was an outstanding warrant for his arrest related to child support payments. See id. Plaintiff also stated he would have given the officer his correct social security number if he had been asked, although he recanted this testimony once the body camera footage showed him repeatedly giving an incorrect social security number to the officer. See id.
In the initial parts of the deposition, Plaintiff also testified that he has fled from the police and deliberately given incorrect personal information to the police in the past, but not in the context of the July 21, 2018. [ECF No. 27-4 at 29:20-31:12]. Plaintiff further testified he had never given false information to the police about his social security number. Id. at 34:7-9.
II. Discussion
A. Legal Standard
It has long been understood that courts possess certain implied powers which result from the very nature of their institution. Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991). More specifically, “‘courts have inherent power to dismiss an action when a party has willfully deceived the court and engaged in conduct utterly inconsistent with the orderly administration of justice.”‘ KPS & Assocs. v. FMC, Inc., 318 F.3d 1, 15 (1st Cir. 2003) (citation omitted); see also United States v Shaffer Equip. Co., 11 F.3d 450, 461-62 (4th Cir. 1993).
In invoking the inherent power to punish conduct which abuses the judicial process, a court must exercise discretion in fashioning an appropriate sanction, which may range from dismissal of a lawsuit to an assessment of attorney's fees. See Chambers, 501 U.S. at 33. When the court employs this inherent power, it must “consider the egregiousness of the conduct in question in relation to all aspects of the judicial process.” Dodson v. Bravo, 321 F.3d 663, 667 (7th Cir. 2003) (citation and emphasis removed). However, a federal court is not forbidden “to sanction bad-faith conduct by means of the inherent power simply because that conduct could also be sanctioned under the statute or the Rules.” Chambers, 501 U.S. at 50.
Fed. R. Civ. P. 37 defines the sanctions a court may levy on a party who refuses to cooperate in discovery. The Fourth Circuit has held that in “determining what sanctions to impose under Rule 37,” a district court must consider four factors: “(1) whether the non-complying party acted in bad faith, (2) the amount of prejudice that noncompliance caused the adversary, (3) the need for deterrence of the particular sort of non-compliance, and (4) whether less drastic sanctions would have been effective.” Anderson v. Found. for Advancement, Educ. & Employment of Am. Indians, 155 F.3d 500, 504 (4th Cir. 1998); see also Belk v. Charlotte-Mecklenburg Bd. Of Educ, 269 F.3d 305, 348 (4th Cir. 2001); Mutual Federal Savings and Loan Association v. Richards, 872 F.2d 88, 93 (4th Cir. 1989).
B. Analysis
1. Defendants' Motion to Dismiss and Motion to Show Cause
Defendants seek the court dismiss Plaintiff's complaint with prejudice in that “[t]he Plaintiff has approached this litigation, and therefore this Court, with extreme bad faith as demonstrated by his perjurious deposition testimony.” [ECF No. 27-1 at 1]. Indeed, it appears that both parties agree, at the least, that Plaintiff, in his deposition, “improperly denied that he had previously been on the property of 532 Atterbury Drive and falsely denied giving incorrect identification information to the deputies.” [ECF No. 36 at 5]. The dispute between the parties is whether Plaintiff's actions warrant dismissal of the instant case.
Although it appears Plaintiff lied under oath in his deposition, dismissal of his case with prejudice does not appear warranted based on assessment of the Anderson factors.
Before entering a dismissal order pursuant to this inherent authority, courts consider similar factors to those under Fed.R.Civ.P. 37 including the degree of culpability of the wrongdoer; the prejudice to the judicial process and the victim caused by the misconduct; the availability of other adequate sanctions; and the public interest. Projects Mgmt. Co. v. Dyncorp Int'l LLC, 734 F.3d 366, 373-74 (4th Cir. 2013) (citation omitted). These factors reflect the “great [ ] caution” courts must exercise before imposing the severe sanction of dismissal. See Shaffer, 11 F.3d at 462; see also Beach Mart, Inc. v. L&L Wings, Inc., 784 Fed.Appx. 118, 123-24 (4th Cir. 2019).
The first factor-whether the party was acting in bad faith-favors Defendants. It is difficult to conclude when reviewing Plaintiff's deposition that he was simply mistaken or forgetful concerning where the July 21, 2018 incident occurred, where Plaintiff had provided false information to the relevant officers and avoided arrest by jumping the fence. However, as cautioned by the Eleventh Circuit, “false statements alone do not indicate bad faith .... Standing alone, a false or inconsistent statement in a deposition does not compel the conclusion of bad faith.” Byrne v. Nezhat, 261 F.3d 1075, 1125 (11th Cir. 2001). Also, as Plaintiff argued, “[t]he defense is premising their motion of intentional bad faith on Mr. Braxton's inability to remember in detail an event occurring more than four years prior to his deposition,” and “[w]hile the defense is free to infer intentionality, Plaintiff Braxton is equally entitled to claim a faulty memory without any specific intent to lie.” [ECF No. 36 at 56].
Indeed, Defendants argue that Plaintiff “intentionally lied under oath at his civil deposition for presumably an illegitimate collateral objection (i.e., deceiving the Court in an effort to prevail in his lawsuit)” [ECF No. 27-1 at 13], and Defendants could be correct. But, as Defendants stated, to draw such a conclusion, the court would have to presume. To the extent this factor weighs in Defendants' favor, it does not do so strongly. Although Plaintiff's testimony may have been, as characterized by Defendants, “precise and deliberate,” id., it may also have been the product of a more innocuous motivation.
The next factor weighs strongly in Plaintiff's favor. Although Defendants argue otherwise, there is no indication that they were prejudiced by Plaintiff's inaccurate testimony. Defendants state “[t]he Plaintiff, the discovery abuser, attempted to prevent fair adjudication of this case by lying about material issues of this case during his deposition.” Id. at 14 (citing Helmac Products Corp. v. Roth (Plastics) Corp., 814 F.Supp. 560, 572 (E.D.Mich. 1992). (“If fair adjudication has been prevented by this conduct, it is [the discovery abuser] that should be prejudiced.”)). However, Defendants do not argue, and it appears they cannot, that fair adjudication has been prevented, notwithstanding Plaintiff's attempts.
The current case stands in contrast to those where prejudice has been found. For example, as discussed by the Fourth Circuit:
The substantial prejudice suffered by Beach Mart similarly is apparent from the record. L&L's misconduct disrupted the primary factual assumption on which Beach Mart had been operating, namely, that L&L was the owner of the “WINGS” mark as L&L claimed. When Beach Mart learned of the Morrow license after 18 months of discovery, the theory of Beach Mart's case fundamentally shifted. As a result, Beach Mart was forced to file an amended complaint asserting entirely different bases for relief years into the litigation, and the court was required to reschedule the planned trial date and oversee new pleadings and additional discovery. We thus agree with the district court that the prejudice caused by L&L's discovery abuses was significant.Beach Mart, 784 Fed.Appx. at 125.
No such prejudice exists here. Defendants had and continue to have all the relevant evidence in their possession, evidence they were able to confront Plaintiff with following his inaccurate testimony.
Turning to the last two factors, as stated by the Fourth Circuit, “[t]he deterrence and lesser sanctions factors are somewhat intertwined.” Anderson v. Found. for Advancement, Educ. & Emp. of Am. Indians, 155 F.3d 500, 505 (4th Cir. 1998). Where the relative bad faith of the Plaintiff is not clear, and no prejudice ensued to Defendants, a lesser sanction then dismissal with prejudice is warranted to deter the behavior at issue here. The undersigned recommends the District Judge deny Defendants' motion to dismiss but sanction Plaintiff for his actions by ordering Plaintiff to pay the reasonable attorneys' fees associated with the preparation and filing of Defendants' motion to dismiss. Further, it is recommended that the District Judge consider providing an adverse jury instruction concerning Plaintiff's conduct.
Defendants argue lesser sanctions than dismissal are not appropriate, in part, because “Defendants in their current position [are] unable to fully prepare a defense to the Plaintiff's claims” where discovery has closed and Defendants are unable to submit discovery requests “to ascertain the full nature and extent of the Plaintiff's perjury.” [ECF No. 27-1 at 16-17]. However, upon reviewing the BWC footage and associated evidence, Plaintiff admitted in his deposition the accuracy of that evidence and, therefore, his association with 532 Atterbury. Additionally, Defendants characterize this footage as “conclusively establish[ing] Plaintiff's association and connection with 532 Atterbury.” [ECF No. 43 at 4].
Defendants have also filed a motion for an order requiring Plaintiff to show cause “as to why he should not be held in contempt or otherwise sanctioned for committing perjury under 18 U.S.C.A. § 1621 while offering sworn testimony during his October 11, 2022 deposition in the instant matter.” [ECF No. 28]. To the extent the District Judge accepts the undersigned's recommendation above, it is further recommended that Defendants' motion for an order to show cause be denied as moot in that the court's ruling on Defendants' motion to dismiss levies the appropriate sanctions for Plaintiff's conduct.
2. Defendants' Remaining Motions
The undersigned denies Defendants' remaining motions as moot. Although Plaintiff testified in his deposition that he is 5'4” [ECF 27-4 at 36:4], but submitted an identification card that lists his height as 6'4” [ECF No. 277], Plaintiff has agreed to the following to resolve this matter:
Plaintiff and Plaintiff's counsel represent his height is 5'7” and he is willing to stipulate to the same. Plaintiff's counsel has offered to get Plaintiff Braxton's own physician to measure his height and provide the same to the defense.[ECF No. 38 at 2]. Because Defendants have filed no reply to this offer, it appears it is acceptable, rendering Plaintiff's motions regarding this issue moot.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned denies as moot Defendants' motion for extension of time and for physical examination of Plaintiff. [ECF Nos. 29, 30]. The undersigned further recommends the District Judge deny Defendants' motion to dismiss [ECF No. 27], but also sanction Plaintiff for his actions by ordering Plaintiff to pay the reasonable attorneys' fees associated with the preparation and filing of Defendants' motion to dismiss and consider an adverse jury instruction, rendering Defendants' motion for order to show cause [ECF No. 28] moot.
The undersigned further orders, modifying the previous order found at ECF No. 32, that dispositive motions are now due January 12, 2023.
IT IS SO ORDERED AND RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).