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Littler v. Martinez

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

January 3, 2020

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

          ORDER SANCTIONING DEFENDANTS FRANK LITTLEJOHN, JUSTIN SHROYER, MARK SHROYER, RICHARD YARBER, DENVER SMITH, RICHARD BROWN, DUSTY RUSSELL, AMANDA PIRTLE, AND THEIR COUNSEL, AMANDA FIORINI

          Hon. Jane Magnus-Stinson, Chief Judge United States District Court.

         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 and their supervisors (“State Defendants”) were involved in the use of excessive force against him and that Nurse Pamela Hagemeier and Corizon (“Medical Defendants”) were deliberately indifferent to his injuries. The correctional officers twice sprayed Mr. Littler with chemical spray, shot him in the face and back with a pepperball gun, and then used a cell extraction team to remove him from a shower cell after Mr. Littler refused to comply with a strip search. Mr. Littler presented evidence that he suffered a head injury as a result from being shot in the face with the pepperball gun and repeated blows to the head, that he was bleeding from his mouth and nose, and that his nose and scapula may have been broken.

         The defendants moved for summary judgment, but their motions were denied. As to the State Defendants, the Court concluded that there were genuine disputes of material fact regarding whether each use of force-the two applications of chemical spray, the pepperball gun, and the force used by the cell extraction team-violated Mr. Littler's Eighth Amendment rights. As to the Medical Defendants, the Court concluded that there were genuine disputes of material fact regarding whether Nurse Hagemeier was deliberately indifferent to Mr. Littler's injuries.

         In its Orders denying summary judgment, the Court expressed grave concerns regarding the truth of sworn statements submitted by defendants Nurse Hagemeier and Deputy Warden 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 Federal Rule of Civil Procedure 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-Gavin Rose of the American Civil Liberties Union-to represent Mr. Littler.

         Mr. Littler subsequently filed motions for sanctions against four additional State Defendants-Justin Shroyer, Mark Shroyer, Richard Yarber, and Denver Smith-contending that they also made false sworn statements. Ultimately, the Court held three sanctions hearings during which Nurse Hagemeier, four State Defendants, Mr. Crandall, and Ms. Fiorini testified under oath. State Defendant Justin Shroyer failed to appear at the hearing even though ordered to do so.

         The Court already sanctioned Nurse Hagemeier and her counsel, Mr. Crandall, for their misconduct in this action.[1] See Filing No. 248. This Order discusses the appropriate sanctions for several of the State Defendants and their counsel, Ms. Fiorini. It also discusses whether discovery sanctions are warranted against State Defendants Warden Richard Brown, Deputy Warden Frank Littlejohn, Major Dusty Russell, and Captain Amanda Pirtle. Unfortunately, the same troubling conduct by Nurse Hagemeier and her counsel is mirrored by the State Defendants' and their counsel, Ms. Fiorini.[2]

         The hearings regarding the State Defendants' misconduct only increased the Court's initially raised concerns. As with Nurse Hagemeier, probing one of the State Defendants' falsehoods only led to more. Not only did four of the five State Defendants' offer false testimony in multiple declarations in a failed attempt to wrongfully obtain summary judgment, all five of the State Defendants continued offering false testimony during their depositions (if one was taken) and at the sanctions hearings, repeatedly offering what the Court finds to be false testimony about the events surrounding the three uses of force against Mr. Littler.

         Like Mr. Crandall, Ms. Fiorini facilitated the State Defendants' falsehoods by falling woefully short of her ethical obligations and those under Rule 11 to reasonably investigate whether the factual assertions she included in support of the motion for summary judgment had evidentiary support. Had she done so, Ms. Fiorini would have known that the State Defendants had presented numerous false statements to the Court.

         If this was Ms. Fiorini'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 the State Defendants' declarations were false and that emails showed they had withheld preserved video evidence from him, Ms. Fiorini ignored him. She did not even acknowledge these statements, let alone withdraw the false statements and immediately seek out the video evidence she previously told the Court did not exist. Then, after the Court expressed serious concerns with multiple of the State Defendants' sworn statements, Ms. Fiorini again passed on an opportunity to set this litigation on the proper path. Every State Defendant reaffirmed the truth of their sworn statements, even though video evidence revealed that some of their statements were indisputably false.

         Mr. Littler's counsel made a closing statement at the end of one of the sanctions hearings that perfectly captures the Court's concerns. The Court quoted from it when sanctioning Nurse Hagemeier and her counsel, but it is worth repeating:

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 cannot be repeated enough. First, only due to the “perfect storm” of Mr. Littler's litigation skills and the existence of video evidence 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 State Defendants' motion for summary judgment based on their litany of false evidence. By way of understatement, the Court is disturbed by this prospect. The Court wonders in how many other actions such misconduct may have occurred.

         Second, in almost every prisoner civil rights case, the State Defendants and their counsel know that the pro se plaintiff will only be able to rebut their evidence with his own lay testimony and whatever evidence they provide during discovery. Prisoners rarely are able to conduct 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.

         Much of this could have been avoided had Ms. Fiorini not ignored Mr. Littler and his legitimate filings and concerns throughout this litigation. Ms. Fiorini gave Mr. Littler's summary judgment opposition such short shrift that she failed to appreciate that Mr. Littler had directly pointed out that she had submitted false evidence and made false representations to the Court regarding the preservation of video evidence. Many attorneys would be thankful for this; it would provide them an opportunity to correct their errors before the Court intervened. Instead, Ms. Fiorini just ignored Mr. Littler, not to mention his evidence that obviously created genuine issues of material fact.

         Despite their gross misconduct, the State Defendants argue that a jury, not the Court, must determine whether they are truthful. This argument is clearly wrong as a legal matter-the Court has the inherent authority to sanction parties who willfully abuse the judicial process and commit perjury. But the argument is also perverse. By filing summary judgment motions predicated on blatantly false evidence, it was the State Defendants who tried to use false evidence to prevent Mr. Littler from presenting his claims to a jury.

         The Court wishes this was an isolated case gone awry. Unfortunately, Ms. Fiorini's approach in this case is not unique, even setting aside the fact that she submitted false evidence. 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, 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 throughout the circuit 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, this practice remains all too common in this District and is certainly present in this case.

         In the end, just as with Nurse Hagemeier and her counsel, serious sanctions are warranted for several of the State Defendants and Ms. Fiorini. But the big picture is also important. Hundreds of pro se prisoners file civil rights actions in this Court every year (over 800 in 2019) 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 those 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 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 . . . (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.

         Factual Background

         The Court provides a brief factual background to give context for the State Defendants' false sworn testimony. Much of this background is drawn from the video evidence presented during the sanctions hearings.[4]

         At approximately 11:15 a.m. on December 27, 2015, Mr. Littler was moved by Justin Shroyer[5] and other correctional officers from his cell to the shower cell in the Custody Control Unit (“CCU”). Officer Denver Smith prepared the shower cell for Mr. Littler's arrival. Justin Shroyer stated that he moved Mr. Littler to the shower cell in order to strip search him over concerns he possessed a cellular phone, while Mr. Littler maintains that the cellular phone justification was a pretext so that Justin Shroyer could humiliate and degrade him by subjecting him to an unnecessary strip search. Mr. Littler refused to comply with the strip search, so over the next several minutes, different correctional officers, including Justin Shroyer, Captain Amanda Pirtle, and Officer Smith, approached the shower cell to discuss the situation with Mr. Littler.

         Beginning at 11:53 a.m., Captain Pirtle and Deputy Warden Littlejohn discussed the situation via email (presented in reverse chronological order):

From: Pirtie, Amanda
Sent: Sun Dec 27 12:05:23 2015
To: Littiejohn, Frankie
Subject: RE: ICARSH Inquiry
Importance: Normal
I love that. 101
From: Littlejohn, Frankie
Sent: Sundya, December 27, 20156 12:00 PM
To: Pirtle: Amanda
Subject: Re: ICARSH Inquiry
There is no min distance for the pepperball, correct? I'm in the giving mood so instead of the team lets shoot him. He has a history of weapons. We need to be very careful with him.
Sent from my Iphone
On Dec 27, 2015, at 11:53 AM. Pirtie, Amanda APirtie@idoc.IN.gov> wrote:
I have littier in the shower refusing to strip. He wants to take on the team. I am gonna walt for a while before doing anything, I won't leave my mess for the next shift, but I refuse to take orders from an offenders.

         Justin Shroyer first used chemical spray on Mr. Littler at 12:56 p.m. Lieutenant Yarber began briefing the cell extraction team approximately two minutes later, at 12:58 p.m. Less than a minute later, Justin Shroyer returned to the shower cell and deployed a second burst of chemical spray. Just over a minute later, Mark Shroyer approached the shower cell and immediately began firing pepperball rounds. He discharged ten rounds in quick succession, one of which struck Mr. Littler in directly in the face. Mark Shroyer attempted to discharge the remaining ten rounds, but the pepperball gun jammed.

         Shortly after Mark Shroyer utilized the pepperball gun, Lieutenant Yarber directed the handheld camera, which was recording the cell extraction briefing, to be turned off. Recording resumed more than twenty minutes later, at which time the cell extraction team approached the shower cell, entered the shower, and extracted Mr. Littler. Precisely what occurred within the shower cell cannot be seen, as the handheld camera was aimed directly at the back of a correctional officer.

         IV.

         Procedural History and Parties' Arguments

         After the Court granted in part and denied in part Defendants' motions for summary judgment, the Court issued show cause orders to certain defendants and their counsel. The motions for summary judgment and the evidence submitted in support of them suggested that sanctionable misconduct may have occurred. The Court subsequently held three sanctions hearings. At the first, Deputy Warden Frank Littlejohn and his counsel, Mr. Fiorini, testified regarding their conduct, as did Medical Defendants' counsel, Jeb Crandall. Nurse Pamela Hagemeier testified at the second sanctions hearing. The Court previously issued an order sanctioning Nurse Hagemeier and Mr. Crandall. Filing No. 248.

         Before the Court resolved whether sanctions were appropriate for Deputy Warden Littlejohn and Ms. Fiorini, Mr. Littler filed motions for sanctions against four additional State Defendants. These four defendants-Justin Shroyer, Mark Shroyer, Officer Smith, and Lieutenant Yarber-were ordered to testify at the third sanctions hearing. Despite having knowledge of the hearing date, time and place, Justin Shroyer failed to appear.

         The Court ordered post-hearing briefing. This briefing was necessary given the significant evidentiary record, the vast array of sanctionable conduct before the Court, and the number of defendants subject to sanctions. It was, of course, the parties' opportunity to tie together the video and documentary evidence with the hearing testimony to put their best case forward for whether sanctions should issue. The Court permitted the parties to file oversized briefs of sixty pages (Mr. Littler's opening brief), sixty pages (State Defendants' response brief), and thirty-five pages (Mr. Littler's reply brief). Dkt. 327 at 5. The Court emphasized that “it will review the appropriateness of sanctions for each defendant independently, thus the parties' briefs must address each defendant's alleged misconduct individually.” Id. (emphasis added).

         Mr. Littler's post-hearing brief spans sixty pages, includes hundreds of citations to the record and the State Defendants' hearing testimony, and, most importantly, analyzes each State Defendants' sanctionable conduct individually. Dkt. 328. The State Defendants' response is nine pages, five of which advance the argument that the individual State Defendants' false statements are not sanctionable because they are not material. Dkt. 331. It does not contain a single sentence addressing any of the individual State Defendants' misconduct, let alone meaningfully confront the substantial evidence of, and arguments regarding, the misconduct set forth in Mr. Littler's opening brief. The State Defendants' failure to follow the Court's instructions and failure to meaningfully confront whether sanctions are warranted in light of their hearing testimony amounts to waiver of any arguments against sanctions (save for the two, brief generalized arguments the State Defendants make, which are addressed below).

         Given this, a succinct sanctions order relying on Mr. Littler's extensive recitation of the individual State Defendants' misconduct and the Court's assessment of their live testimony would be more than appropriate. Nevertheless, the Court endeavors to discuss each State Defendant's misconduct individually, with the supporting analysis that the serious matter of sanctions deserves. The State Defendants' failure to follow the Court's instructions or to meaningfully resist sanctions while maintaining that they have been honest and forthright during this litigation is merely their most recent troubling decision in a case littered with them.

         First, the Court sets out each individual State Defendant's misconduct in turn. The Court then discusses what sanctions are appropriate given that misconduct. Next, the Court turns to Ms. Fiorini's misconduct. Finally, the Court discusses Mr. Littler's request for discovery sanctions against other State Defendants.

         V.

         Deputy Warden Frank Littlejohn's Misconduct

         A. Summary Judgment Motion and Show Cause Order

         Deputy Warden Littlejohn moved for summary judgment based, among other things, on the argument that he was not involved in the uses of force against Mr. Littler and that he had no notice excessive force had been or was going to be used against Mr. Littler. Filing No. 90. Deputy Warden Littlejohn submitted a sworn declaration in support of his motion for summary judgment, which included the following statement:

15. I was not directly involved in the cell extraction on December 27, 2015. I did not order the cell extraction or participate in the cell extraction. The only order I issued was for Phillip Littler's cell to be inspected weekly for the safety and security of the facility.

Filing No. 88-2 at 3.

         The Court denied Deputy Warden Littlejohn's motion for summary judgment and issued a show cause order. Filing No. 186. The show cause order, among other things, stated that Deputy Warden Littlejohn's above sworn statement appeared false given the following email:

From: Pirtie, Amaanda
Sent: Sun Dec 27 12:05:23 2015
To: Littlejohn, Frankie
Subject RE: ICARSH Inquiry
Importance: Normal
I love that 101
From: Littlejohn, Frankie
Sent: Sunday, December 27, 2015 12:00 PM
To: Pirtie, Amanda
Subject: Re: ICARSH Inquiry
There is no min distance for the pepperball, correct? I'm in the giving mood so instead of the team lets shoot him, He has a history of weapons. We need to be very careful with him.
Sent from my IPhone
On Dec 27, 2015, at 11:53 AM. Pirtie, Amanda APirtie@idoc.IN.gov> wrote:
I have littier in the shower refusing to strip. He wants to take on the team. I am gonna walt for a while before doing anything, I won't leave my mess for the next shift, but I refuse to take orders from an offenders.

Filing No. 174-1 at 6.

         Deputy Warden Littlejohn responded to the Court's show cause order in three parts. See Filing No. 191. First, he stated that he did not remember the email exchange with Captain Pirtle when he submitted his declaration, as it occurred two years before he submitted his declaration, he was not at the prison at the time it was sent, and he “typically has no involvement prior to any use of force, including a cell extraction.” Filing No. 191 at 2.

         Second, Deputy Warden Littlejohn disagreed that the email shows his declaration was false. He contended that he “did not intend his e-mail as an order to Captain Pirtle that Mr. Littler be shot or that he be shot at point-blank range.” Filing No. 191 at 2. Instead, he “believed Captain Pirtle was simply asking for advice as to what she should do, and he gave her his recommendation.” Filing No. 191 at 2. He also asserted that the term “cell extraction” is a term of art that does not include the use of a pepperball gun, thus his denial of involvement or participation in just the cell extraction was not false. Filing No. 191 at 3.

         Deputy Warden Littlejohn also stated that he was not aware of the email until his recollection was refreshed by the Court's show cause order, as his counsel did not make him aware of it when it was found during discovery. Nevertheless, he reconfirmed that all the statements in his declaration remain true. Filing No. 191 at 3.

         In addition, Deputy Warden Littlejohn's declaration affirmatively stated that the “only order” he gave was for Phillip Littler's cell to be inspected weekly for the safety and security of the facility. Filing No. 88-2 at 3 (emphasis added). His directive to Captain Pirtle “lets shoot him, ” Filing No. 174-1 at 6, undermines that statement, and Deputy Warden Littlejohn's response to that challenge was that he was not giving an “order” in the email.

         Deputy Warden Littlejohn's response is troubling. Instead of simply admitting that he made false statements in his declaration, he asks the Court to believe both that he was unaware of a critical email regarding the event when he signed his declaration (implying this was a simple mistake), and yet he argues that email does not change anything-his statements just so happened to be true if read in a highly technical manner.

         Moreover, because Deputy Warden Littlejohn twice reaffirmed the truth of his declaration even after he was aware of the email, the Court need not delve into whether Deputy Warden Littlejohn was aware of the email when he signed his declaration. Deputy Warden Littlejohn passed on the opportunity to amend or withdraw his declaration even after he was aware of the email, so he has assured the Court his statements in the declaration are true. Unfortunately, they are not.

         B. Deputy Warden Littlejohn Falsely Stated in His Declaration That He Was Not Directly Involved in the Cell Extraction

         On their face, it is difficult to square Deputy Warden Littlejohn's sworn statements that he was “not directly involved” in, did not “order, ” and did “participate” in the cell extraction with his email exchange with Captain Pirtle. This email was specifically about how to remove Mr. Littler from the shower cell. Filing No. 174-1 at 6. And Deputy Warden Littlejohn responded, “I'm in a giving mood so instead of the team let's shoot him.” Filing No. 174-1 at 6. His attempts during the hearing to explain how his sworn statements remained true despite the content of his email exchange lacked credibility.

         His primary contention is that the term “cell extraction” is a term of art that does not include use of pepper spray or the pepperball gun. It is, at minimum, highly suspect that only now does Deputy Warden Littlejohn attest that “cell extraction” is a term of art referring only to the use of the cell extraction team and does not include the use of chemical spray or the pepperball gun. Urging this narrow reading allows him to argue that his sworn statements-that he was not “directly involved” and did not “participate” in the “cell extraction”-are accurate. However, this is not how either Deputy Warden Littlejohn or his counsel used the term in his declaration or summary judgment brief.

         Three different uses of force were at issue in this case-the use of chemical spray, a pepperball gun, and the physical removal of Mr. Littler from the shower by the cell extraction team-but in his declaration Deputy Warden Littlejohn only disclaims direct involvement or participation “in the cell extraction.” Filing No. 88-2 at 3. His counsel, after acknowledging the other uses of force, states only that “Defendant[] Littlejohn . . . did not witness or participate in the cell extraction.” Filing No. 90 at 5. If “cell extraction” as used in his declaration did not include the two earlier uses of force, Deputy Warden Littlejohn could not have moved for summary judgment on all of Mr. Littler's claims. But he did, which shows that he and his counsel construed the term “cell extraction” as broader than just the use of the cell extraction team. Indeed, Deputy Warden Littlejohn answered in the affirmative when asked whether he knew his declaration would be used to argue he was “not involved, not only in the cell extraction process, but in the deployment of the PepperBall system[.]” Filing No. 235 at 80. Deputy Warden Littlejohn only urged this narrower reading of the term when the critical email came to light that was inconsistent with his declaration.

         Moreover, even if the Court accepts Deputy Warden Littlejohn's narrow definition of “cell extraction, ” his declaration is at least extremely misleading, if not simply false. Again, Deputy Warden Littlejohn states in his response he “does not view the use of a Pepperball gun as part of the ‘cell extraction' because the person using the Pepperball gun is not on the actual cell extraction team.” Filing No. 191 at 3. But this attempt to draw a clear line between the use of the pepperball gun and the cell extraction team ignores that the critical email exchange discussed both. Captain Pirtle wrote that Mr. Littler wanted to “take on” the cell extraction team, and Deputy Warden Littlejohn decided that “instead of the team let's shoot him.” Filing No. 174-1 at 6 (emphasis added). This shows that Deputy Warden Littlejohn was consulted about using the cell extraction team, and he decided to use the pepperball gun first, “instead of the team.” Thus, the email exchange was not solely about using the pepperball gun, it was about using it before the cell extraction team was used. In fact, the initial email from Captain Pirtle was only about the cell extraction team, and it was Deputy Warden Littlejohn who first raised using the pepperball gun. Given this, his sworn statement that he was “not directly involved in the cell extraction” and that he did not “order” or “participate in the cell extraction” is at least misleading. He was “directly involved” and “participate[d]” in the use of the cell extraction team in that a subordinate officer asked him whether it should be used, and he decided it should not, at least until the pepperball gun was.[6]

         In the end, it appears that Deputy Warden Littlejohn and his counsel, Ms. Fiorini, tied themselves in linguistic knots so they could argue that no false statements were made. Their semantic arguments are implausible and lacked credibility during the hearing. But even if accepted, they still fail to show that Deputy Warden Littlejohn was truthful with the Court. Rather than doing so, his response and testimony during the hearing show what little regard he and Ms. Fiorini have for their obligation to tell the truth. Such a continued pattern of dishonesty, even after being called on it, supports serious sanctions.

         C. Deputy Warden Littlejohn Falsely Stated in His Declaration that the Only Order He Issued Related to Searches of Mr. Littler's Cell

         As noted, Deputy Warden Littlejohn further attested in his declaration that the “only order [he] issued was for Phillip Littler's cell to be inspected weekly for the safety and security of the facility.” Filing No. 88-2 at 3. Deputy Warden Littlejohn contends that this remains true because his email to Captain Pirtle stating, “I'm in the giving mood so instead of the team let's shoot him, ” was merely a recommendation to a subordinate officer who was looking for advice. Filing No. 235 at 72-74. At best, this explanation strains credulity. And, Deputy Warden Littlejohn's demeanor at the hearing reveals that his explanation is simply false.

         Again, Deputy Warden Littlejohn's subordinate officer sent him an email soliciting his input on what she should do about Mr. Littler, to which he replied, “I'm in the giving mood so instead of the team let's shoot him.” Filing No. 174-1 at 6. The statement, “I'm in a giving mood, ” undoubtedly suggests that Deputy Warden Littlejohn is making the call that Mr. Littler should be shot with the pepperball gun before utilization of cell extraction team. After all, he stated that he was in a giving mood-meaning he is the one making the call.

         Even if he only meant it as a suggestion, for him to argue that his sworn declaration remains true is, again, semantics. Swearing that the “only order” he gave was unrelated to the incident in question without mentioning that he gave a “recommendation” to a subordinate officer-again, when he knew the declaration would be used to support his argument at summary judgment that he had no involvement in this incident-is extremely deceptive, so much so that one can only conclude that it is calculated to convince the Court of a version of the events that is not true.

         D. Deputy Warden Littlejohn Reiterated the False Declaration Statements during the Sanctions Hearing and Offered Implausible Justifications for Those Statements

         Deputy Warden Littlejohn responded to the Court's show cause order and testified during the sanctions hearing that he stands by the statements he made in his declaration. See Filing No. 191 at 3; Filing No. 235 at 70. This is baffling. It is clear that Deputy Warden Littlejohn knew that his declaration was problematic, if not simply false, at the sanctions hearing. Yet when pressed at the hearing, he refused to directly acknowledge it.

         For example, when asked whether he was involved in the incident-instead of saying no, which is what his declaration states but the email shows is false-Deputy Warden Littlejohn consistently returned to the justification that his declaration was signed two-and-a-half years after the incident. See, e.g., Filing No. 235 at 77 (“I acknowledge I sent that e-mail . . ., but at the time I answered that, which was two and a half years later . . . So when I [signed my declaration], typically I have zero involvement, . . . [s]o I truthfully believed that that was the truth.”). His constant switching between this justification (that he did not remember the email when he signed his declaration so he sincerely believed it was true when he signed it) and ...


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