PULLEN

v.

BROWN

I. Status

Plaintiff, Allen Pullen, is proceeding on a pro se civil rights complaint (Doc. 1; Compl.) against seven officers for an incident that occurred in September 2018 at Florida State Prison.¹ Plaintiff claims the officers “ambushed [him] from behind, beat him extensively, and sexually battered [him],” all while he was fully shackled. See Compl. at 9. Plaintiff was released from prison in February 2020. See Notice of Change of Address (Doc. 94). Shortly thereafter, the Court set deadlines for the parties to conduct discovery and for other pretrial matters. See Order (Doc. 96). The discovery period was to close on June⁵, 2020. Id. On May 27, 2020, Defendants filed

II. Motion & Response

While the above email communications occurred in connection with discovery, Defendants do not rely upon Rule 37 as the source of the relief they seek. Rather, they ask the Court to dismiss the case with prejudice under its inherent power to impose sanctions against a party. They cite two cases: Redmon v. Lake Cty. Sheriff’s Office, 414 F. App’x 221 (11th Cir. 2011); Soto v. Miami-Dade Cty., 281 F. Supp. 3d 1320 (S.D. Fla. 2017), aff’d, 760 F. App’x 855 (11th Cir. 2019). See Motion at 3-4. In Redmon, the Eleventh Circuit affirmed the district court’s dismissal of a case under the Prison Litigation Reform Act because, in his civil rights complaint form, the pro se prisoner-plaintiff lied about his litigation history. 414 F. App’x at 223, 224, 225- 26. The court held the district court did not abuse its discretion in dismissing the case without prejudice after finding the plaintiff’s omission was intentional and, thus, an abuse of the judicial process. Id. at 225-26.

Id.

III. Analysis

As Defendants correctly assert, “Courts have the inherent power to police those appearing before them.” Purchasing Power, LLC v. Bluestem Brands, Inc., 851 F. 3d 1218, 1223, 1225 (11th Cir. 2017) (citing Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991)). However, such power should be exercised with “restraint and discretion.” Id. A court’s “inherent power extends to a full range of litigation abuses,” not just those that occur in court. Chambers, 501 U.S. at 44, 46. Thus, a court may sanction a party who has “acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” Id. at 45-46. Before imposing sanctions against a party, a court must afford the offending party an opportunity to respond either orally or in writing, and to “justify his actions.” Thomas v. Tenneco Packaging

1224. A court may find a party acted with bad faith, for example, if the party’s conduct delayed or disrupted the litigation. Byrne v. Nezhat, 261 F. 3d 1075, 1121 (11th Cir. 2001) abrogated in part on other grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639 (2008). Under its inherent power, a district court may “fashion an appropriate sanction for conduct [that] abuses the judicial process,” including assessing attorney’s fees or dismissing the action. Chambers, 501 U.S. at 44. While outright dismissal of an action is a severe sanction, a court may do so when alternative sanctions will not appropriately address the conduct. Id. at 45.

District court have exercised their inherent powers to sanction parties who have employed bad faith litigation tactics, including harassment and intimidation of opposing parties, their counsel, or witnesses. See, e.g., Carroll v. Jaques, 926 F. Supp. 1282, 1289, 1292 (E.D. Tex. 1996) (imposing a fine against the defendant for his abusive behavior toward opposing counsel at his deposition, including making verbal attacks, using profanities, and threatening physical violence); Jaroch v. Fla. Fruit Juices, Inc., No. 17 C 8518, 2020 WL 1288933, at *8 (N.D. Ill. Mar. 18, 2020) (assessing attorney’s fees against a party who intimidated the opposing party’s witness); Porton v. SP One, Ltd., No. 8:14- CV-2847-T-17EAJ, 2015 U.S. Dist. LEXIS 48256, at *8, 11, 15-16 (M.D. Fla. Mar. 19, 2015), report and recommendation adopted, 2015

U.S. Dist. LEXIS 48259 (recommending dismissal with prejudice because over two years, the plaintiff threatened and intimidated the defendants and their employees, demonstrating the plaintiff filed the lawsuit only to harass, not to vindicate his rights); Fodor v. E. Shipbuilding Grp., No. 5:12cv28/RS/CJK, 2013 U.S. Dist. LEXIS 196076, at *5, 7-8 (N.D. Fla. Dec. 19, 2013) (admonishing the plaintiff for threatening defense counsel with criminal charges “to gain leverage in [the] litigation,” and imposing a minimum fine of $250 for each subsequent threat). District courts generally should not dismiss an action with prejudice unless lesser sanctions will not suffice and absent evidence that the offending party committed a fraud on the court or engaged in a pattern of abusive behavior. See Betty K Agencies, Ltd. v. M/V MONADA, 432 F. 3d 1333, 1337–38 (11th Cir. 2005) (“[A] dismissal with prejudice, whether on motion or sua sponte, 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.” (emphasis in original)). See also Soto, 281 F. Supp. 3d at 1321, 1323; Parcher v. Gee, No. 8:09-CV-857-T-23TGW, 2016 WL 7446630, at *8-11 (M.D. Fla. Oct. 19, 2016), report and recommendation adopted, No. 8:09- CV-857-T-23TGW, 2016 WL 7440922 (M.D. Fla. Dec. 27, 2016) (finding dismissal with prejudice was warranted where the plaintiff fabricated an incident report to bolster his claim in a civil rights case, and he engaged in other acts of “deceit” in an attempt to influence the outcome of the case). The Court has carefully and thoroughly considered Plaintiff’s emails, his response to Defendants’ motion, and relevant law. Plaintiff appears to blame his conduct on his medical condition, saying his blood sugar exceeded 700 when he was arrested. See Pl. Resp. at 2. Under the circumstances, however, the Court concludes Plaintiff’s medical condition does not excuse his conduct. Plaintiff attempted to extort from defense counsel medications and free copies of documents by threatening physical harm to others,

including defense counsel’s own mother. It is difficult to fathom a circumstance under which such conduct would not constitute bad faith. Plaintiff’s last two emails to defense counsel suggest he is pursuing this litigation as a means to coerce those associated with the Florida Department of Corrections to ensure he receives continued medical care even though he is no longer in State custody: he demanded that defense counsel contact his doctor and obtain medications for him or he would stab someone, specifically mentioning counsel’s mother. Not only is Plaintiff’s conduct inappropriate as a litigation tactic, but it is criminal. Additionally, Plaintiff expresses no regret or remorse for his conduct. He does not apologize to the Court or defense counsel,

nor does he concede his behavior was unacceptable, even now that, according to him, he has received “numerous emergency medications to restore him to sanity.” See id. Indeed, Plaintiff seems to believe his conduct was justified because, at the time, he was insulin-deprived, and Defendants would not assist him in getting the medications he needed. Finally, Plaintiff’s conduct certainly has delayed and disrupted the litigation. Such behavior cannot be condoned or ignored. After careful consideration, the Court finds Plaintiff “acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” See Campbell, 501 U.S. at 45-46. As such, sanctions must be imposed against him. Dismissal of the action with prejudice is not warranted. While Plaintiff’s conduct certainly was uncivil and disrespectful both to defense counsel and the judicial process, Plaintiff has not engaged in such conduct previously, and he has not perpetrated a fraud upon the Court. Cf., e.g., Parcher, 2016 WL 7446630, at *8-11. However, given Plaintiff is proceeding in this case as a pauper, see Order (Doc. 11), and is currently detained in county jail, assessing attorney’s fees or imposing a fine likely will have little to no impact. Thus, the Court finds the appropriate sanction to address Plaintiff’s serious conduct is dismissal of the action without prejudice. As an additional sanction, if

Plaintiff chooses to re-file his claims against Defendants, he is precluded from proceeding in forma pauperis but rather must pay the full filing fee up front. Imposing any lesser sanction would not serve to deter Plaintiff and other litigants from engaging in such behavior in the future. Accordingly, it is now ORDERED: 1. Defendants’ motion to dismiss with prejudice (Doc. 107) is GRANTED in part to the extent the case is dismissed without prejudice for Plaintiff’s abuse of the judicial process.

2. The Clerk is directed to enter judgment, terminate any pending motions, and close the case.

3. If Plaintiff chooses to initiate another case based upon the same or similar facts/issues, he is precluded from proceeding in forma pauperis. If Plaintiff initiates another case based upon the same or similar facts/issues, he must provide a copy of this Order with his complaint, and he must pay the full $400 filing fee. DONE AND ORDERED at Jacksonville, Florida, this 22nd day of October 2020. 4 4 De af J. DAVIS United States District Judge

Jax-6 Cc? Allen Pullen Counsel of Record