United States District Court, S.D. Indiana, Terre Haute Division
ORDER SANCTIONING DEFENDANT PAMELA HAGEMEIER AND HER
COUNSEL, JEB CRANDALL
JANE MAGNUS-STINSON, CHIEF JUDGE.
Phillip Littler is a state inmate incarcerated at the Wabash
Valley Correctional Facility (“Wabash Valley”).
He brought this action pro se, alleging that several
correctional officers used excessive force against him and
defendants Nurse Hagemeier and Corizon (“Medical
Defendants”) failed to adequately treat his injuries.
The evidence is undisputed that the correctional officers
twice sprayed Mr. Littler with chemical spray, shot him in
the face with a pepperball gun, and then used a cell
extraction team to remove him from a shower cell. Mr. Littler
presented evidence that he suffered a head injury from the
pepperball gun and repeated blows to the head, was bleeding
from his mouth and nose, and that his nose and scapula may
have been broken. Mr. Littler attests that despite his
complaints, Nurse Hagemeier did not meaningfully assess his
condition. Instead, he claims she only attempted to wipe away
some of the blood from his nose and lip but quickly gave up
when she realized it would take a significant amount of
effort to properly clean his wounds.
State Defendants (correctional officers and their supervisors
at Wabash Valley) and the Medical Defendants moved for
summary judgment on Mr. Littler's claims, but their
motions were denied. As to Nurse Hagemeier, the Court
concluded that barely cleaning Mr. Littler's bloodied
nose and lip after he informed her that he had been shot in
the face with a pepperball gun and punched in the head is
sufficient evidence for a jury to conclude that she was
deliberately indifferent to a serious medical need.
Orders denying summary judgment, the Court expressed grave
concerns regarding the truth of sworn statements submitted by
defendants Nurse Hagemeier and the Assistant Superintendent
Frank Littlejohn. Through Mr. Littler's persistence and
court intervention, video evidence and emails were uncovered
that cast serious doubt on the veracity of their sworn
statements. The Court also expressed concerns regarding their
respective counsel, Jeb Crandall and Amanda Fiorini. It
appeared that both may have violated Rule 11 and their
ethical obligations as officers of the Court. Four Show Cause
Orders issued detailing the Court's concerns, and the
Court recruited counsel to represent Mr. Littler. Two
hearings were held at which the two defendants and their
counsel testified. This Order concerns only Nurse Hagemeier
and her counsel, Mr. Crandall.
hearings regarding Nurse Hagemeier's and Mr.
Crandall's conduct only increased the Court's
concerns. Examining one of Nurse Hagemeier's falsehoods
only uncovered several more. Not only did Nurse Hagemeier
offer false testimony in multiple affidavits in support of
her motion for summary judgment, she doubled-down at the
hearing, repeatedly offering false testimony about the
medical treatment (or lack thereof) she provided Mr. Littler.
The Court finds that she was motivated at least in part out
of animus toward Mr. Littler. For example, to cast Mr.
Littler in a bad light and explain her lack of treatment,
Nurse Hagemeier falsely insisted that Mr. Littler responded
to an offer of treatment by telling her to “go to
Crandall facilitated Nurse Hagemeier's falsehoods by
falling woefully short of his ethical obligations and those
under Rule 11 to ensure that he reasonably investigated
whether the factual assertions he included in support of the
motion for summary judgment had evidentiary support. Had he
done so, Mr. Crandall would have known that Nurse
Hagemeier's First Affidavit, and thus his motion for
summary judgment, contained false statements.
were Mr. Crandall's only misstep, lesser sanctions would
be appropriate. But things spiraled from there. When Mr.
Littler, who was still proceeding pro se at this point,
pointed out in his summary judgment opposition that video
evidence in the record showed Mr. Crandall and Nurse
Hagemeier had made false statements, Mr. Crandall ignored
him. Instead of moving to withdraw Nurse Hagemeier's
First Affidavit and correcting the false statement in his
motion for summary judgment, Mr. Crandall filed a reply and a
Second Affidavit from Nurse Hagemeier that repeated the
falsehood and added more.
Littler's recruited counsel, Gavin Rose from the American
Civil Liberties Union, made a closing statement at the
hearing that perfectly captures the Court's concerns:
There is probably no legal office in the state more aware
than the three offices here of the full spectrum of pro se
litigation, and particularly, inmate litigation. And I think
everyone involved can probably agree that Mr. Littler is an
exceptionally competent, exceptionally persistent litigant.
And I . . . am confident in saying that is probably the
Court's understanding as well.
If I had filed a brief highlighting the exact same issues
that Mr. Littler did in citing to the exact same record of
evidence, I am hard-pressed to imagine that those issues
would have been ignored and that we would have reached this .
. . point in the proceedings. . . . [W]e are only here
because of some perfect storm of an exceedingly competent pro
se litigant and the Court's willingness to . . . take an
active role in the discovery process and analyze the pro se
pleadings and hundreds of pages worth of exhibits.
And it is not at all difficult to imagine how under even
slightly different circumstances, this case would be over,
and judgment would have been awarded in favor of all
Filing No. 235 at 118-19.
Rose's two most salient points are worth reiterating.
First, only due to the “perfect storm” of Mr.
Littler's litigation skills and the existence of video
evidence of his medical treatment was the most egregious
misconduct in this case uncovered. But for this
“perfect storm, ” Mr. Rose is correct that the
Court very easily could have granted the Medical
Defendants' motion for summary judgment based on their
litany of false evidence. By way of understatement, the Court
is disturbed by this prospect.
almost every prisoner civil rights case regarding medical
care, defendants and their counsel know that the pro se
plaintiff will only be able to rebut defendants' evidence
with his own lay testimony and/or whatever evidence the
defendants provide. There are usually no depositions, and
untestable or untested defense affidavits are almost always
the foundation of a defense motion for summary judgment.
Under these circumstances, it is paramount for the Court to
be able to trust that the information and sworn statements
provided by defendants are truthful. This case has shattered
much of this could have been avoided had Mr. Crandall not
dismissed Mr. Littler as a nuisance litigant. Mr. Crandall
gave Mr. Littler's summary judgment opposition such short
shrift that he failed to appreciate that Mr. Littler cited
video evidence demonstrating that Nurse Hagemeier and Mr.
Crandall had provided false testimony to the Court. This lack
of appreciation is compounded by the fact that Mr. Crandall
also missed the existence of genuine issues of material fact,
thoroughly undermining the premise of his motion.
this attitude is not unique to Mr. Crandall. In the
overwhelming majority of prisoner civil rights cases,
defendants move for summary judgment regardless of whether
there are genuine issues of material fact. When pro se
plaintiffs respond with evidence that creates a material
dispute of fact, much of the time they are ignored.
Defendants then reply not by confronting plaintiffs'
evidence, but by asking the Court to grant summary judgment
based on their version of the disputed facts. This
is the very antithesis of the summary judgment standard.
violates Rule 11(b)(2) for counsel to ask the Court to commit
an obvious legal error, and counsel rarely make such a
request when the plaintiff is not a pro se prisoner. When
defendants move for summary judgment or reply to their motion
for summary judgment, there must be a good-faith basis to
argue that summary judgment is warranted. The defendants'
approach is essentially “it can't hurt to ask. It
can. Any frivolous motion [or] pleading . . . is subject to
sanctions.” Meeks v. Jewel Companies, Inc.,
845 F.2d 1421, 1422 (7th Cir. 1988).
Seventh Circuit sounded a clear warning to defendants that
the failure to take seriously the summary judgment standard
is improper and sanctionable:
[The defendant] seems to have based its litigation strategy
on the hope that neither the district court nor this panel
would take the time to check the record. Litigants who take
this approach often (and we hope almost always) find that
they have misjudged the court. We caution [the defendant] and
other parties tempted to adopt this approach to summary
judgment practice that it quickly destroys their credibility
with the court.
This approach to summary judgment is also both costly and
wasteful. If a district court grants summary judgment in a
party's favor based on its mischaracterizations of the
record, the judgment will in all likelihood be appealed,
overturned, and returned to the district court for settlement
or trial. This course is much more expensive than simply
pursuing a settlement or trying the case in the first
instance. Further, the costs incurred while engaging in these
shenanigans stand a real chance of being declared excessive
under 28 U.S.C. § 1927, even if the abusive party
prevails at trial on remand. Risking such pitfalls in the
hope of avoiding a trial is a dramatic miscalculation of the
risks and rewards of each approach.
Malin v. Hospira, Inc., 762 F.3d 552, 564-65 (7th
Cir. 2014) (citation omitted). Despite the Seventh
Circuit's warning, “these shenanigans” remain
all too common in this District and are certainly present in
end, the Court concludes that serious sanctions are warranted
for Nurse Hagemeier's and Mr. Crandall's misconduct.
But the big picture is also important. Hundreds of pro se
prisoners file civil rights actions in this Court every year
(over 700 in 2018) seeking to vindicate their constitutional
rights. Some are successful, while others are not. In all of
these cases, the Court cannot and will not treat filings and
evidence submitted by pro se prisoners differently than that
submitted by represented parties. Counsel litigating against
pro se prisoners cannot either. Every time they do, it erodes
the perception of equal justice under law that this Court and
all attorneys should seek to promote.
Court fears that no amount of judicial action can fully
mitigate the harm done when defense counsel treats opposing
pro se parties as second-class litigants or when counsel so
ignores the standard of review on summary judgment as to
demonstrate complete disrespect for the Court's and
opposing party's time. This Order and the sanctions
issued in it are a small but hopefully meaningful step toward
halting this practice by deterring counsel litigating against
pro se prisoners from proceeding down the same ill-advised
Misconduct by Parties
district court has inherent power to sanction a party who has
willfully abused the judicial process or otherwise conducted
litigation in bad faith.” Secrease v. Western &
Southern Life Ins. Co., 800 F.3d 397, 402 (7th
Cir. 2015); see Montano v. City of Chicago, 535 F.3d
558, 564 (7th Cir. 2008); Greviskes v. Universities
Research Ass'n, 417 F.3d 752, 758-59 (7th Cir.
2005). This power “is permissibly exercised not merely
to remedy prejudice to a party, but also to reprimand the
offender and to deter future parties from trampling upon the
integrity of the court.” Salmeron v. Enterprise
Recovery Sys., Inc., 579 F.3d 787, 797 (7th Cir. 2009)
(citation and quotation marks omitted).
power of a district court to issue sanctions extends to
“default judgments against defendants as well as to
dismissals against plaintiffs.” Secrease, 800
F.3d at 401. This power “should be used only when there
is a record of delay [or] contumacious conduct . . . . In
deciding what measure of sanctions to impose, the district
court should consider the egregiousness of the conduct in
question in relation to all aspects of the judicial
process.” Greviskes, 417 F.3d at 759 (citation
and quotation marks omitted). District courts are required
“to consider other sanctions before resorting to
dismissal” or default judgment. Rivera v.
Drake, 767 F.3d 685, 686 (7th Cir. 2014).
is “false testimony concerning a material matter with
the willful intent to provide false testimony, rather than as
a result of confusion, mistake, or faulty memory.”
Montano, 535 F.3d at 564 (citation and quotation
marks omitted); see Id. at 566 (noting that it is
“almost always perjury” when “a witness 
knowingly lies about a material matter”). “A
litigant's misconduct can justify default judgment, and
perjury is among the worst kinds of misconduct.”
Rivera, 767 F.3d at 686. After all, “no one
needs to be warned not to lie to the judiciary.”
Ayoubi v. Dart, 640 Fed.Appx. 524, 528-29 (7th Cir.
2016); see Jackson v. Murphy, 468 Fed.Appx. 616, 620
(7th Cir. 2012) (holding that “a warning to testify
honestly [is] not required” because the plaintiff,
“like any litigant, required no notification that he .
. . must tell the truth when testifying in an
affidavit”).Not only does false testimony undermine the
truth-seeking function of the judiciary, but a party's
“lies put the judicial system through . . . unnecessary
work, ” Rivera, 767 F.3d at 686, which harms
“honest litigants who count on the courts to decide
their cases promptly and fairly, ” Secrease,
800 F.3d at 402.
Misconduct by Attorneys
authorities governing the conduct of attorneys are relevant
here. First, Federal Rule of Civil Procedure 11(b) provides
that when an attorney signs a filing presented to the Court,
the attorney certifies “that to the best of the
person's knowledge, information, and belief, formed after
an inquiry reasonable under the circumstances . . . (2) the
claims, defenses, and other legal contentions are warranted
by existing law; [and] (3) The . . . factual contentions have
evidentiary support . . . .” Rule 11(c) authorizes the
Court to sanction attorneys who violate this rule.
28 U.S.C. § 1927 authorizes the Court to sanction an
attorney who “so multiplies the proceedings in any case
unreasonably and vexatiously.” Sanctions are warranted
under § 1927 “if the attorney has acted in an
objectively unreasonable manner by engaging in a serious and
studied disregard for the orderly process of justice . . . or
where a claim [is] without a plausible legal or factual basis
and lacking in justification.” Lightspeed Media
Corp. v. Smith, 761 F.3d 669, 708 (7th Cir. 2014)
(citation and quotation marks omitted).
the Indiana Rules of Professional Conduct,  Rule 3.3(a),
states that “[a] lawyer shall not knowingly . . . (1)
make a false statement of fact . . . to a tribunal or fail to
correct a false statement of material fact . . . previously
made to the tribunal by the lawyer.”
Standard of Review for a Motion for Summary Judgment
motion for summary judgment asks the Court to find that a
trial is unnecessary because there is no genuine dispute as
to any material fact and, instead, the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P.
56(a). On summary judgment, a party must show the Court what
evidence it has that would convince a trier of fact to accept
its version of the events. Gekas v. Vasilades, 814
F.3d 890, 896 (7th Cir. 2016). The moving party is entitled
to summary judgment if no reasonable fact-finder could return
a verdict for the non-moving party. Nelson v.
Miller, 570 F.3d 868, 875 (7th Cir. 2009). The Court
views the record in the light most favorable to the
non-moving party and draws all reasonable inferences in that
party's favor. Skiba v. Illinois Cent. R.R. Co.,
884 F.3d 708, 717 (7th Cir. 2018). It cannot weigh evidence
or make credibility determinations on summary judgment
because those tasks are left to the fact-finder. Miller
v. Gonzalez, 761 F.3d 822, 827 (7th Cir. 2014).
Nurse Hagemeier's Misconduct
Show Cause Order
Court's Show Cause Order to Nurse Hagemeier provided:
Nurse Hagemeier submitted a second declaration, sworn under
penalty of perjury, which states that she was never told by
Plaintiff Phillip Littler (or anyone else) that Mr. Littler
had been shot in the face with a pepperball gun or otherwise
beaten by correctional officers. Video evidence previously
submitted to the Court, however, shows that these statements
are most likely false. See Filing No. 93.
The video shows correctional officers escorting Mr. Littler
to the medical room where Nurse Hagemeier attests she was
waiting for him while the cell extraction occurred. Although
the interaction between Mr. Littler and Nurse Hagemeier
cannot be seen, parts of their discussion can be heard (while
other parts are more difficult to hear). Not long into their
discussion, Mr. Littler clearly states, “I just want to
tell you for the record, they shot me in the face three
times, [and] punched me in the head several times. I
didn't resist.” Id.
This video evidence likely shows that Nurse Hagemeier's
sworn statement contains a false assertion of fact.
Specifically, she attests in her second declaration that Mr.
Littler “never told me he was shot in the face, beaten,
or otherwise assaulted by officers.” Filing No. 188-1
Filing No. 197 at 1-2.
Hagemeier responded to the Court's Show Cause Order.
See Filing No. 204. She stated that, after reviewing
the video, she realized that her sworn statement was
incorrect when she swore that Mr. Littler did not tell her he
was shot with a pepperball gun or punched in the head. She
explained that she believed her sworn statement to be true at
the time she made it, but she simply had no recollection of
Mr. Littler informing her of this. Nurse Hagemeier testified
to the same during the hearing, stating that she simply
“made a mistake.” Filing No. 237 at 11.
addition to her response, Nurse Hagemeier submitted a Third
Affidavit. In it, she seeks to “correct the
sentence at issue in Paragraph 7 of my Second Declaration,
” by replacing her previous false statement with the
statement that, “[v]ideo evidence establishes that Mr.
Littler stated that he had been shot and punched in the face,
but I do not recall Mr. Littler making this statement to me,
even after watching the video footage.” Filing No.
204-1 at 3.
Nurse Hagemeier Offered Knowingly False Testimony in Two
Sworn Statements When She Stated that Mr. Littler Never Told
Her He was Beaten or Shot in the Face with a Pepperball
Court does not find Nurse Hagemeier's testimony credible
that she made an innocent mistake when she twice attested
that Mr. Littler did not tell her about the cause of his
Hagemeier knew Mr. Littler was presented to her for medical
treatment after a cell extraction, and he clearly had at
least a bloodied nose and mouth. He stated shortly after
arriving at the nurse's station that “for the
record” he was punched in the head and shot in the face
with a pepperball gun. The Court further concludes that Nurse
Hagemeier offered knowingly false testimony when she said she
did not remember this.
aspects of Nurse Hagemeier's testimony reinforce this
conclusion. Nurse Hagemeier claims she did not recall Mr.
Littler's very specific allegation of excessive force
that caused the injury she was supposed to treat, but she
also claims to remember several other specific details of her
interactions with Mr. Littler that were not documented in any
medical record. See, e.g., Filing No. 188-1 at 2
(“No officer ever told me what happened to Mr. Littler
when I saw him.”); Filing No. 188-1 at 3 (“When
Mr. Littler came in, I asked him if he had any other injuries
besides his face, and he said no. I examined the back of his
neck and top of his shoulders to see if there were any
bruises or red marks, and there were none.”). The most
salient example of Nurse Hagemeier's selective memory, as
discussed further below, is her statement, “I asked Mr.
Littler if he wanted to shower and if he wanted ice, and he
said he wanted to go back to his cell and said, ‘You
can go to hell.'” Filing No. 188-1 at 3. It is much
too convenient that Nurse Hagemeier remembered specific
comments made by Mr. Littler that reflected poorly on him or
justified a lack of treatment, but she failed to recall his
very clear statement that was relevant to how she should
examine and treat him.
Hagemeier also had reason to be dishonest. Foreswearing
knowledge of the cause of Mr. Littler's injury allowed
her to characterize the little treatment she gave him as
adequate under the circumstances and, more specifically,
allowed her to argue that she was not deliberately
indifferent. Nurse Hagemeier's selective (and inaccurate)
memory raised the Court's suspicion, and her lack of
credibility during the hearing confirmed that the Court was
right to be suspicious.
Court finds that Nurse Hagemeier intentionally offered false
testimony in her First Affidavit and Second Affidavit when
she attested that Mr. Littler “made no complaints
regarding being sprayed with chemicals or being shot with a
pepper spray gun, ” Filing No. 78-1 at 4-5, and
“never told me he was shot in the face, beaten, or
otherwise assaulted by officers, ” Filing No. 188-1 at
Hagemeier testified during the hearing that other than the
lone falsehood pointed out in the Court's Show Cause
Order, she had no concerns about the veracity of any other
statements in her first two affidavits. Filing No. 237 at 11.
As set forth below, she should have.
Nurse Hagemeier Offered Knowingly False Testimony When She
Stated that She Checked Mr. Littler's Pupil Reactivity
for Signs of a Head Injury
Second Affidavit, Nurse Hagemeier attested that during her
medical assessment of Mr. Littler she “checked to see
if his pupils were reactive, which they were, ” and
that “[i]f a patient cannot follow your finger with his
eyes or answer questions appropriately, there may be a
cognitive issue and I would have sent him to the
infirmary.” Filing No. 188-1 at 3. Nurse Hagemeier was
questioned about this during the hearing. She reaffirmed that
she examined his pupils' reactivity by having him follow
her finger with his eyes and by using a Penlight. Filing No.
237 at 23. She testified that Mr. Littler did not require any
assistance opening his eyes to complete these tests. Filing
No. 237 at 23.
clear during the hearing that Nurse Hagemeier knew she was
not truthful about this examination. The Court does not
credit her testimony that she tested Mr. Littler's pupils
for signs of a head injury. If her lack of credibility while
testifying was not enough, several other factors confirm that
Nurse Hagemeier was dishonest.
Hagemeier made no mention of testing Mr. Littler's pupils
in her First Affidavit, even though she explained the
encounter in some detail. See Filing No. 78-1 at
4-8. It was not until Mr. Littler argued in his response that
Nurse Hagemeier failed to assess him for a severe head injury
that Nurse Hagemeier claimed, in her Second Affidavit filed
with her reply, that she tested Mr. Littler's pupil
reactivity. See Filing No. 188-1 at 3. Given that
there is no mention of testing Mr. Littler's pupil
reactivity in the medical records, see Filing No.
78-2 at 17, this at least raises the question why, if true,
this was not included in the First Affidavit.
video evidence, however, confirms that Nurse Hagemeier did
not test Mr. Littler's pupils. The video shows Mr.
Littler being escorted out of the nurse's station. As he
is escorted through the door, he is ordered by one of the
correctional officers to “stand there” and then
“turn toward” him. Filing No. 93, 10:20-10:26.
Mr. Littler responds, “I can't know where
you're at right now.” And it becomes immediately
apparent why. Mr. Littler is turned toward the camera, which
zooms in on his face. The video clearly shows that his eyes
are swollen and remain tightly pressed shut. ...