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Littler v. Martinez

United States District Court, S.D. Indiana, Terre Haute Division

March 5, 2019

PHILLIP LITTLER, Plaintiff,
v.
CHRISTOPER MARTINEZ, et al. Defendants.

          ORDER SANCTIONING DEFENDANT PAMELA HAGEMEIER AND HER COUNSEL, JEB CRANDALL

          HON. JANE MAGNUS-STINSON, CHIEF JUDGE.

         I. Introduction

         Plaintiff 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.

         The 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.

         In its 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.

         The 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 hell.”

         Mr. 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.

         If this 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.

         Mr. 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 Defendants.

Filing No. 235 at 118-19.

         Mr. 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.

         In 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.[1] 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 that trust.

         Second, 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.

         Unfortunately, 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.

         It 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).

         The 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 this case.

         In the 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.

         The 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[2] from proceeding down the same ill-advised path.

         II. Legal Standards

         A. Misconduct by Parties

         “A 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).

         The 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).

         Perjury 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.

         B. Misconduct by Attorneys

         Three 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.

         Second, 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).

         Finally, the Indiana Rules of Professional Conduct, [3] 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.”

         C. Standard of Review for a Motion for Summary Judgment

         A 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).

         III. Nurse Hagemeier's Misconduct

         A. Show Cause Order

         The 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 at 3.

Filing No. 197 at 1-2.

         Nurse 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.

         In addition to her response, Nurse Hagemeier submitted a Third Affidavit.[4] 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.

         B. 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 Gun

         The 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 injuries.

         Nurse 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.

         Several 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.

         Nurse 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.

         The 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 3.

         Nurse 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.

         C. Nurse Hagemeier Offered Knowingly False Testimony When She Stated that She Checked Mr. Littler's Pupil Reactivity for Signs of a Head Injury

         In her 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.

         It was 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.

         Nurse 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.

         The 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. ...


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