Opinion
7:20-cv-04257-TLW-JDA
02-07-2022
Clarence Silvester Gregory, Individual and Individually Named Under The Survivorship Right Statute as a[ Surviving Son heir, et., And a Real Party/Claimant of His Father Decedent, William Jessie Gregory, Jr., Plaintiff, v. R.J. Reynolds Tobacco Company, Inc., also known as Reynolds American, Inc., also known as The American Tobacco Corporation, formerly known as Brown & Williamson USA, Inc.; Phillip Morris USA, Inc., formerly known as Altria Group, Inc., Defendants.[1]
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Jacquelyn D. Austin United States Magistrate Judge
This matter is before the Court on Plaintiff's motion for summary judgment or, in the alternative, for sanctions or, in the alternative, for leave to plead a cause of action against Defendant and its legal counsel (“the summary judgment/sanctions motion”) and Plaintiff's motion for civil and criminal contempt against Defendant's legal counsel (“the contempt motion”). [Docs. 130; 171.] Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(e), D.S.C., this magistrate judge is authorized to review all pretrial matters in cases involving litigation by individuals proceeding pro se and to submit findings and recommendations to the District Court.
Although Plaintiff styles his motion as one for civil and criminal contempt against Defendant's legal counsel, the undersigned magistrate judge does not have the authority to hold counsel in criminal or civil contempt in this instance, where the purported misbehavior did not happen in the undersigned's presence, the case is not a misdemeanor case, and the undersigned is not presiding with the parties' consent under 28 U.S.C. § 636(c). 28 U.S.C. § 636(e). Rather, the undersigned can only certify factual findings and refer the issue to the presiding district judge, who can decide whether to enter a contempt order. Id.; Proctor v. State Gov't of N.C. , 830 F.2d 514, 521-22 (4th Cir. 1987). Thus, the undersigned construes Plaintiff's motion as a motion to certify to the district judge facts supporting holding counsel in contempt. See Hanwha Azdel, Inc. v. C&D Zodiac, Inc., No. 6:12-cv-00023, 2013 WL 12314518, at *1 n.1 (W.D. Va. Nov. 14, 2013).
Plaintiff is an inmate in the custody of the South Carolina Department of Corrections and is currently incarcerated at the Broad River Correctional Institution. Plaintiff filed this action on November 24, 2020, and subsequently filed an Amended Complaint. [Docs. 1; 14.] On November 22, 2021, the Clerk filed the summary judgment/sanctions motion. [Doc. 130.] On December 10, 2021, Defendants filed a response in opposition to that motion. [Doc. 150.] On January 24, 2022, the Clerk filed the contempt motion. [Doc. 171.] Although the time for Defendants to respond to the contempt motion has not lapsed, because the basis for that motion is the same as the summary judgment/sanctions motion, to which Defendants have responded, the Court finds it appropriate to handle both motions at this time.
A prisoner's pleading is considered filed at the moment it is delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). Accordingly, construing the filing date in the light most favorable to Plaintiff, the Court deems this action to have been filed on November 24, 2020. [Doc. 1-18 at 3 (Plaintiff's affidavit of service signed on November 24, 2020).]
BACKGROUND
Plaintiff commenced this action by filing a voluminous Complaint that consisted of 2, 053 typed pages. [Doc. 1.] Upon review, the Court concluded that the Complaint did not comply with Rule 8 of the Federal Rules of Civil Procedure. [Doc. 11.] Consequently, the Court notified Plaintiff that his Complaint would be subject to summary dismissal pursuant to 28 U.S.C. § 1915 unless Plaintiff cured the deficiencies of his Complaint by filing an amended complaint that complied with Rule 8. [Doc. 11.]
On January 11, 2021, Plaintiff filed a pleading on the standard court form [Doc. 14], a separate typed 37-page pleading against Defendant Phillip Morris USA, Inc. [Doc. 14-1], and a separate typed 30-page pleading against Defendant R.J. Reynolds Tobacco Company, Inc. (“R.J. Reynolds”) [Doc. 14-2]. The Court construes these three documents together as the Amended Complaint. [Doc. 19 at 2.]
This action arises from Plaintiff's claim that Defendants, who are corporations in the tobacco industry, committed intentional fraud and sold products resulting in his father's smoking and in Plaintiff's inhalation of second-hand smoke. [Docs. 14; 14-1; 14-2.] Specifically, Plaintiff alleges that Defendants' fraudulent representations that their products were safe caused the death of his father, who died of brochogenic lung cancer, COPD, and squamous cell carcinoma cancer. [Doc. 14 at 10.] Plaintiff also alleges that, as a result of his inhalation of second-hand smoke, he now suffers from chronic sinusitis, chronic coughing, infection of his esophagus, infection of his larynx voice box, shortness of breath, wheezing and gasping, increased phlegm, worsened cold symptoms, scratchy throat, throat irritation, nightmares, and lack of rest and sleep. [Id.] He further alleges he suffers nightmares from witnessing his father's deteriorating physical condition and hearing his father moaning and groaning in agony, as a result of his cancer. [Id.]
Plaintiff asserted four claims in his Amended Complaint. [Docs. 14-1 ¶¶ 92-107; 14-2 ¶¶ 59-79.] However, on November 23, 2021, the Court dismissed three of Plaintiff's claims. [Doc. 131.] Accordingly, only Plaintiff's fraud claim remains pending. [Docs. 14-1 ¶¶ 92-107; 14-2 ¶¶ 59-70.]
APPLICABLE LAW
Liberal Construction of Pro Se Pleadings
Plaintiff is proceeding pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. The mandated liberal construction means only that if the Court can reasonably read the pleadings to state a valid claim on which the party proceeding pro se could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the pro se party's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for summary judgment:
The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.Fed. R. Civ. P. 56(a). A fact is “material” if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Id. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.
Sanctions and Contempt
“Federal courts have the inherent power to order sanctions to preserve the integrity of the judicial process and to punish bad-faith conduct intended to delay or disrupt the course of litigation or to impede enforcement of a court order.” Life Techs. Corp. v. Govindaraj, 931 F.3d 259, 267 (4th Cir. 2019) (internal quotation marks omitted). The Supreme Court has emphasized that a court may exercise its contempt power only if there is no “fair ground of doubt as to the wrongfulness of” the conduct at issue. Taggart v. Lorenzen, 139 S.Ct. 1795, 1801 (2019) (internal quotation marks and emphasis omitted).
A magistrate judge's contempt authority is outlined in 28 U.S.C. § 636(e). For cases such as the present one-where the purported misbehavior did not happen in the magistrate judge's presence, the case is not a misdemeanor case under 18 U.S.C. § 3401, and the magistrate judge is not presiding with the parties' consent under 28 U.S.C. § 636(c)-the magistrate judge's contempt authority is provided in 28 U.S.C. § 636(e)(6)(B). That subsection provides that when an “act that constitutes a criminal contempt occurs outside the presence of the magistrate judge” or an “act [occurs that] constitutes a civil contempt, ”
the magistrate judge shall forthwith certify the facts to a district judge and may serve or cause to be served, upon any person whose behavior is brought into question under this paragraph, an order requiring such person to appear before a district judge upon a day certain to show cause why that person should not be adjudged in contempt by reason of the facts so certified. The district judge shall thereupon hear the evidence as to the act or conduct complained of and, if it is such as to warrant punishment, punish such person in the same manner and to the same extent as for a contempt committed before a district judge.28 U.S.C. § 636(e)(6)(B).
DISCUSSION
The summary judgment/sanctions motion and the contempt motion both relate to authorization release forms R.J. Reynolds' counsel sent to Plaintiff in an effort to obtain information and records about his father. [Docs. 130; 171.] Plaintiff has provided the Court with copies of the authorization release forms, which were sent to Plaintiff on October 22, 2021, and list Plaintiff as the personal representative of his father's estate. [Doc. 130-4.] As this Court has previously noted, “nothing in the record indicates that a personal representative has been appointed” in Plaintiff's father's estate. [Doc. 131 at 3.] Thus, Plaintiff has repeatedly argued in various motions that counsel attempted to fraudulently induce him to sign these documents by listing him as the personal representative of his father's estate even though counsel knew Plaintiff had not been appointed as personal representative. [See Doc. 173.] Plaintiff contends that counsel's conduct violates S.C. Code § 16-13-240, constitutes mail fraud in violation of 18 U.S.C. § 1341 et seq., and violates the South Carolina Rules of Professional Conduct. [Doc. 130-5.] On this basis, Plaintiff now moves for summary judgment, for sanctions against R.J. Reynolds and its counsel, to plead a cause of action against R.J. Reynolds and its counsel, and for the undersigned to certify to the district judge facts supporting holding counsel in contempt. [Docs. 130; 171.]
On December 9, 2021, R.J. Reynolds' counsel informed Plaintiff that the authorization forms had erroneously listed Plaintiff as the personal representative of his father's estate and that they “agree[d] that this designation was in error, but it was not [their] intent . . . to fraudulently obtain information.” [Doc. 150-1.] Additionally, they informed Plaintiff that because the claims related to his father had since been dismissed by the Court [Doc. 131 ], they "no longer seek to collect any records related to him" [Doc. 150-1 (emphasis omitted).] Accordingly, as the undersigned has previously found, “Plaintiff has failed to establish any intentional wrongdoing, misconduct, or discovery abuse by Defendant R.J. Reynolds Tobacco Company or its counsel.” [Doc. 173.] Therefore, Plaintiff has established neither that R.J. Reynolds engaged in any sanctionable conduct or conduct that violates the Rules of Professional Conduct nor that the undersigned should certify facts to the district judge supporting holding counsel in contempt. Plaintiff also has failed to establish that no genuine dispute of material fact exists such that he is entitled to summary judgment. Finally, as the Court has previously informed Plaintiff, he does not have standing to bring a criminal complaint and any claims Plaintiff seeks to plead related to the authorization release forms do not arise out of the same transaction and occurrence as the Amended Complaint and, therefore, may not be pleaded in this action. [Doc. 140.] For these reasons, Plaintiff's motions should be denied.
Any request by Plaintiff to disqualify R.J. Reynolds' counsel should be denied for the same reason.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the undersigned recommends that Plaintiff's motion for summary judgment or, in the alternative, for sanctions or, in the alternative, for leave to plead a cause of action against Defendant and its legal counsel [Doc. 130] be DENIED and that Plaintiff's motion for civil and criminal contempt against Defendant's legal counsel [Doc. 171], which the undersigned construes as a motion to certify to the district judge facts supporting holding counsel in contempt, be DENIED. Additionally, it is recommended that if the district judge adopts this Report and Recommendation, Plaintiff should also be directed not to file any further motions about the authorization release forms.
IT IS SO RECOMMENDED.