Opinion
Case No. 5:18-cv-376-TES-CHW
02-21-2020
CHRISTOPHER L. AMERSON, Plaintiff, v. GREGORY DOZIER, et al., Defendants.
Proceedings Under 42 U.S.C. §1983 Before the U.S. Magistrate Judge
REPORT AND RECOMMENDATION
Before the Court is a motion to dismiss filed by the Defendants. (Doc. 124). For the following reasons, it is RECOMMENDED that the motion be GRANTED, and that this action be DISMISSED with prejudice.
At the core of this Section 1983 action is Plaintiff Christopher Amerson's claim that his meals are being poisoned by prison staff. This Court previously adjudicated a different action commenced by Plaintiff involving the same allegations of food poisoning. That other action, Amerson v. Sellers, No. 5:15-cv-8 (MTT) (MSH), was dismissed without prejudice based on Plaintiff's repeated failure to comply with the Court's instructions.
In this action, Plaintiff has persisted in two types of abusive tactics. First, despite this Court's rule that "Motions for Reconsideration shall not be filed as a matter of routine practice," M.D. Ga. Local Rule 7.6, Plaintiff has made it his practice exhaustively to seek the revision of any ruling not in his favor. On screening under 28 U.S.C. § 1915A, the Court declined to add claims relating to the workings of the prison grievance system and to vague allegations of conspiracy. See (Doc. 21, pp. 12-14) adopted by (Doc. 27). Plaintiff then sought, in motions to amend, again to add claims relating to the grievance process, but the Court denied those motions. See (Doc. 53) denying (Doc. 52), (Doc. 60) denying (Doc. 58).
See, e.g., Thomas v. Warner, 2237 F. App'x 435, 437 (11th Cir. 2007) ("a prisoner does not have a constitutionally-protected liberty interest in an inmate grievance procedure").
Plaintiff next sought to obtain an amendment by process of attrition. Plaintiff filed an unsuccessful motion to add Timothy Ward, the new Commissioner of the Department of Corrections, as a Defendant under a theory of respondeat superior, (Doc. 64) and also filed a motion to amend again advancing conspiracy theories associated with the prison grievance process and with the collection of evidence relating to that process. (Doc. 67). The Court denied those motions. (Doc. 71). Plaintiff then repeated his request to add Ward as a Defendant, and the Court again denied that request. (Doc. 90) denying (Doc. 84). Plaintiff then unsuccessfully sought reconsideration of many of the Court's prior rulings, see (Doc. 110, p. 1; Doc. 112), while also filing new motions to amend again seeking, unsuccessfully, to add Ward as a Defendant. (Doc. 110, pp. 2-4). Pending before the Court at present are (a) yet another motion to amend (Doc. 113), and (b) motions seeking the revision, again, of the Court's refusal to add Ward as an individual-capacity defendant. (Doc. 118, 119).
Plaintiff has also persisted in bad faith abuse of the discovery process. This Court provided discovery instructions in its initial screening order. They included the following provision:
The deposition of the Plaintiff, a state/county prisoner, may be taken at any time during the time period hereinafter set out provided prior arrangements are made with his custodian. Plaintiff is hereby advised that failure to submit to a deposition may result in the dismissal of his lawsuit under Rule 37 of the Federal Rules of Civil Procedure.
(Doc. 21, p. 19)
After the Court published these discovery instructions and extended the time for discovery, see (Doc. 59), Plaintiff, in August 2019, filed a second motion to compel discovery. The Court denied that motion on the grounds that (a) Plaintiff did not confer, in good faith, with opposing counsel to resolve the matter without court action, and (b) the Defendants credibly informed the Court that they had never received any discovery requests from Plaintiff. See (Doc. 71, pp. 4-5) denying (Doc. 66). Plaintiff was advised to confer with counsel for the Defendants, and to "serve any discovery requests upon counsel for the Defendants." (Doc. 71, p. 5).
Plaintiff filed his first motion to compel discovery before any defendant had yet been served. See (Doc. 18).
Rather than serve or re-serve his discovery requests on the Defendants, Plaintiff moved for a third time for compulsive discovery relief, but again, the Court denied Plaintiff's request. See (Doc. 110) denying (Docs. 92, 93). Plaintiff also unsuccessfully sought reconsideration of the denial of his second motion to compel. See (Doc. 112) denying (Doc. 78).
On November 26, 2019, the Defendants gave notice of their intent to take Plaintiff's deposition on December 19, 2019. (Doc. 124-2). Plaintiff received notice of that deposition no later than December 3, 2019. (Doc. 124-3). On December 19, as the deposition began, Plaintiff asserted that he did not "feel ... like I'm going to be able to ... participate competently in ... the deposition." (Doc. 124-4, p. 5). The basis for Plaintiff's objection was poisoned food, which Plaintiff claims was "disrupt[ing] my mind or something." (Doc. 124-4, p. 6). The deposition was suspended, but not before Plaintiff was able to inquire as to the status of his own discovery requests. See (Doc. 124-4, pp. 6, 10-11). Plaintiff has now filed a fourth motion for compulsive discovery relief, (Doc. 129), and Plaintiff appears to cite his own deposition inquiries as satisfying his obligation, under Rule 37, to confer in good faith with opposing counsel prior to seeking relief from the Court. See (Doc. 129, p. 1).
A prejudicial dismissal is "an extreme sanction that may be properly imposed only when: (1) a party engages in a clear pattern of delay or willful contempt (contumacious conduct); and (2) the district court specifically finds that lesser sanctions would not suffice." Warner v. Tinder, Inc., 675 F. App'x 945, 946 (11th Cir. 2017). The conduct of Plaintiff Christopher Amerson satisfies these criteria.
As the record in this case demonstrates, Plaintiff has persistently violated the clear and repeated instructions and warnings of this Court. Plaintiff has also consistently shown little regard for the legal rulings of this Court, as evidenced by Plaintiff's standard practice of seeking the reconsideration of nearly every ruling not in his favor. Plaintiff has also manipulated the adjudicative process to abuse his opponents. Plaintiff's behavior at his December 19, 2019 deposition offers the latest and most flagrant example of this abuse to-date. At that deposition, Plaintiff cited food poisoning as a basis for his lack of competency and inability to participate. Even accepting food poisoning as a legitimate basis for Plaintiff's inability to testify, the issue could and should have been anticipated and raised in a pre-deposition motion for protective order. Instead, Plaintiff unduly delayed until after his deposition to file such a motion. See (Doc. 117). Plaintiff's behavior in (i) inquiring, during his deposition, about his own discovery requests, and then (ii) moving to compel responses, indicates that Plaintiff was, in fact, able to participate in the deposition, and that his asserted incompetency was a manipulative tactic. The sheer volume of Plaintiff's correspondence with the Court, including numerous frivolous and abusive motions, further belies his claim that he is somehow incapacitated due to poisoned food.
The Defendants have provided the Court with precedent from the Fifth Circuit Court of Appeals applying the ordinary presumption that "[e]very person is competent to be a witness." Fed. R. Evid. 601. See, e.g., United States v. Barnes, 803 F.3d 209, 219 (5th Cir. 2015) ("That Sims used meth the morning of his testimony ... does not mean the district court abused its discretion in allowing the testimony"). --------
Finally, the record both in this case, and particularly in Amerson v. Sellers, No. 5:15-cv-8 (MTT) (MSH), demonstrates that less drastic sanctions, including even the sanction of a non-prejudicial dismissal, have failed to break Plaintiff Christopher Amerson of his habit of routinely engaging in abusive behavior during the course of litigation in the federal courts.
Accordingly, given Plaintiff's pattern of abusive conduct, and because Plaintiff has persisted in such conduct despite past attempts to impose lesser sanctions, including the prior sanction of a non-prejudicial dismissal by this Court in a case involving precisely the same subject matter raised herein, it is RECOMMENDED that the Defendants' motion to dismiss be GRANTED and that the Court dismiss Plaintiff's claims with prejudice.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, WITHIN FOURTEEN (14) DAYS after being served with a copy thereof. The District Judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are further notified that, pursuant to Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice."
SO RECOMMENDED, this 21st day of February, 2020.
s/ Charles H. Weigle
Charles H. Weigle
United States Magistrate Judge