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Lewis v. Frayne

United States District Court, D. Connecticut

May 15, 2018

KACEY LEWIS, Plaintiff,
v.
DR. MARK FRAYNE, DR. ROBERT BERGER, AND DR. GERARD GAGNE Defendants.

          MEMORANDUM OF DECISION DISMISSING CASE

          Vanessa L. Bryant, United States District Judge

         Under consideration by the court is dismissal of this case under Federal Rule of Civil Procedure 41(b). As discussed below, the court considers whether the case should be dismissed under two standards. First, the court considers the “substantial justification” standard outlined in Lewis v. Rawson, 564 F.3d 569 (2d Cir. 2009) which states the standard for dismissal when a plaintiff refuses to go forward with a duly scheduled trial. Second, the court considers dismissal under the standard applicable when a party fails to go forward with trial announced in Drake v. Norden Systems, Inc., 375 F.3d 248 (2d Cir. 2004). The facts currently before the court weigh in favor of dismissal under either standard. Under either of these standards the conduct of the Plaintiff warrants dismissal and accordingly the case is DISMISSED.

         I. Procedural Background

         The court begins with a brief procedural history of the case helpful in understanding the ultimate ruling. Plaintiff Kacey Lewis (“Plaintiff” or “Lewis”), an inmate in the Cheshire Correctional Institution, proceeding pro se, brings Eighth Amendment deliberate indifference and Fourteenth Amendment dueprocess claims against Defendants Mark Frayne (“Frayne”), Robert Berger (“Berger”), and Gerard Gagne (“Gagne”), doctors at Northern Correctional Institution (“Northern”), in connection with the involuntary administration of psychotropic medication. Throughout this case, Plaintiff has asserted that he does not suffer from a mental illness and that Defendant's violated his constitutional rights by forcibly medicating him to prevent him from pursuing a suit in the Connecticut Superior Court, challenging the criminal conviction for which he is detained.

         Plaintiff first brought his Complaint in this action on July 20, 2012. [Dkt. 1.] The case was inactive for months and the parties failed to comply with the first Scheduling Order [Dkt. 17]; accordingly the court ordered Plaintiff to show cause why the case should not be dismissed by February 14, 2014. [Dkt. 23.] Plaintiff “demonstrated no good cause for his failure to diligently prosecute this case, ” and the court dismissed the action on February 20, 2014. [Dkt. 25.] Plaintiff moved for reconsideration of the dismissal [Dkt. 26], the court denied reconsideration [Dkt. 27], Plaintiff appealed the decision [Dkt. 28], and the Second Circuit vacated the dismissal and remanded for further proceedings on December 16, 2014. [Dkt. 30.] The court entered its first Amended Scheduling Order on December 19, 2014, setting jury selection for November 3, 2015. [Dkt. 31.] On February 23, 2015, Plaintiff filed his Amended Complaint. [Dkt. 34.]

         Plaintiff moved to appoint counsel on March 16, 2015 [Dkt. 37], and the court granted that motion [Dkt. 39]. Attorney Dan LaBelle appeared to represent Plaintiff on May 26, 2015. [Dkt. 45.] Plaintiff's counsel moved to continue trial forthe first time on October 1, 2015, citing his recent appointment as pro bono counsel, the need to file an amended pleading, and the need for limited discovery. [Dkt. 51.] The court granted the motion and rescheduled all deadlines including jury selection, now to take place on March 31, 2016. [Dkt. 53.]

         On December 15, 2015, Plaintiff moved to remove Mr. LaBelle as counsel as “the attorney-client relationship has broken down.” [Dkt. 54.] Plaintiff requested to represent himself. Id. Mr. LaBelle agreed with the statement, explaining his late appointment to the case, the need for additional time to complete discovery and prepare for trial leading to his motion for a continuance, and recounting a meeting with Plaintiff where he presented Plaintiff a full set of discovery materials. [Dkt. 55.] Plaintiff did not accept the discovery materials, stated he wished to proceed pro se, and abruptly ended the meeting. Id. The court referred the matter to Magistrate Judge Margolis, who “urge[d] plaintiff to reconsider his motion.” [Dkt. 58.] Rather than heed Magistrate Judge Margolis' advice, Plaintiff filed a Motion for Judicial Recusal stating Judge Bryant “has showed bias and prejudice against the Plaintiff in prior judicial proceedings, ” and citing the Court's disqualification of a certain juror in a criminal case involving Lewis in 1999 in Connecticut Superior Court. [Dkt. 59.] The court denied the Motion for Recusal and granted the Motion to Withdraw as Counsel. [Dkt. 61.]

         The court granted Plaintiff's Motion to File a Second Amended Complaint on February 10, 2016 [Dkt. 72] and, because of the amendment, rendered a Second Amended Scheduling Order resetting all deadlines including the jury selection date, now set for June 30, 2016. [Dkt. 73.]

         Plaintiff submitted a flurry of motions in late April and early May of 2016, including a motion for Summary Judgment [Dkt. 93, dated April 19, 2016], motion to compel production of certain documents including prison video recordings and movement logs [Dkt. 97, dated April 22, 2016], motion to sanction opposing counsel for making the allegedly untrue statement that Plaintiff stated he was “involuntarily medicated for psychiatric disorders” (Plaintiff asserts he has never admitted to having psychiatric disorders) [Dkt. 96, dated April 22, 2016], and motion for permission to file a separate trial memorandum since he would not likely be able to confer with opposing counsel as a pro se prisoner [Dkt. 98, dated May 6, 2016]. Defendants responded to all motions and filed their own Joint Trial Memorandum on June 1, 2016. [Dkt. 107.] The court granted Plaintiff's Motion for Leave to File Separate Trial Memorandum [Dkt. 112], denied Plaintiff's Motion for Sanctions because defense counsel's allegedly incorrect statement was consistent with Plaintiff's own allegations and, even if incorrect, would not have warranted sanctions [Dkt. 113] and denied Plaintiff's Motion to Compel for failure to establish Defendants improperly withheld any discovery [id.].

         Confronted with Mr. Lewis' refusal to confer with defense counsel and file a joint trial memorandum, the court made a significant concession in an effort to assure that the trial would go forward as scheduled. The court deviated from its standard practice outlined in its Chambers Practices, which requires parties to meet and confer to discuss the conduct of the trial and file a joint trial memorandum. Under Chambers Practices, the joint trial memorandum must include a joint statement of the case and a list of witnesses, including the anticipated subjects and duration of witness testimony. This information helps the court to determine the time necessary to try the case, empanel a jury, and manage its docket on which several cases are scheduled for trial each month.

         On June 6, 2016, after having entered several prior scheduling orders, the court scheduled jury selection for July 1, 2016 [Dkt. 110] and trial to begin July 22, 2016. [Dkt. 108.] On June 16, 2016, Plaintiff requested an extension of time to file his Trial Memorandum [Dkt. 118], which the court granted [Dkt. 121]. As a result, the court postponed the July 2016 jury selection and trial dates. [Dkt. 122.] Plaintiff also moved to strike Defendants' Trial Memorandum “because the Defendants failed to seek permission from the court to file a separate trial brief, " despite the fact that Plaintiff insisted that the parties file separate briefs. [Dkt. 119]. Plaintiff's motion to strike was denied, as Defendants sufficiently explained why they could not file a trial memorandum jointly with Plaintiff. [Dkt. 121.]

         On June 28, 2016, Plaintiff filed his trial memorandum. [Dkt. 127.] On July 18, 2016, Plaintiff moved to reopen discovery in order to respond to Defendants' Supplemental Motion in Opposition to Plaintiff's Motion for Summary Judgment. [Dkt. 133.] That same day, the court granted in part and denied in part Plaintiff's Motion for Summary Judgment, allowing trial to proceed as to liability and damages for Plaintiff's Eighth Amendment claim and solely with respect to damages on his Fourteenth Amendment claim. [Dkt. 139.] On July 19, 2016, the court denied Plaintiff's Motion to Reopen Discovery as moot given the court's summary judgment decision, and given that the Defendant's supplemental briefing to which Plaintiff sought to respond concerned only issues of law not requiring further discovery. [Dkt. 142.]

         Contemporaneous with Plaintiff's Motion to Reopen Discovery, Plaintiff moved to appoint an expert witness to opine about “diagnosis and treating mental illness” and “the side-effects of antipsychotic, neuroleptic drugs [and] psychotropic drugs.” [Dkt. 134.] The court granted Plaintiff's request and provided Plaintiff with a list of medical professionals supplied by the Connecticut Medical Society, along with their contact information, and awarded Plaintiff up to $1, 000 to compensate any expert retained for records review and interview.[1] [Dkt. 149.] The court stated it would consider approving additional funds for additional services upon review of the initial records review and interview. Id. To date, Plaintiff has not availed himself of this prosecutorial tool.

         Defendants moved to continue the Final Pretrial Conference, initially scheduled for July 28, 2016 [Dkt. 143], and on July 27, 2016 the court rescheduled said conference for December 7, 2016. [Dkt. 153.] That same day, the court set the Final Scheduling Order scheduling jury selection for January 3, 2017. [Dkt. 156.] Defendants moved to continue the Pretrial Conference on December 5, 2016 due to a medical issue. [Dkt. 195.] The court granted the motion and continued the Pretrial Conference to December 15, 2016. [Dkt. 196.]

         The Pretrial Conference lasted 50 minutes. At the hearing, the court and Plaintiff discussed various pretrial matters, including Plaintiff's general preparedness to argue his case pro se without an expert, particularly in view of the fact that the critical issue in the case was whether Plaintiff suffered from a mental illness which required him to be medicated.

         At the hearing, Plaintiff also demanded that he receive court filings directly from the court rather than through the prison litigation system like all other inmates. [Dkt. 199.] Plaintiff represented that officials at Corrigan, where he was housed, were not giving him electronic court filings in a timely manner, and as a result Plaintiff claimed he did not learn he had a court proceeding until an hour before the hearing began. Id. This district has a memorandum of understanding with the Connecticut Department of Corrections under which the Department has agreed to deliver to inmates with cases pending in our district all court filings, including docket entries. The clerk of the court reported that these cases comprised 19.61 percent of the district's pending civil caseload at the end of 2017. The court asked the courtroom deputy to state for the record what notices Plaintiff should have received with respect to the December 15, 2016 hearing. Id. The courtroom deputy stated the pretrial hearing was originally scheduled on July 27, 2017 for December 7, notice was given to the prison through PRISSCAN, and Plaintiff should have been notified at that time. The hearing was continued on December 6 and notice was provided to Corrigan and should have been provided to Plaintiff at that time as well. Id. The court asked if Plaintiff received notice in July of the December pretrial hearing. Id. Plaintiff stated he did not receive the July notice, and he was at a different prison facility at that time, and he definitely did not receive the December notice of continuance. Id. The court directed the clerk to physically mail the Plaintiff all court orders and ordered defense counsel to mail Plaintiff everything the defense filed on the docket. Id. The court made this additional concession to appease Plaintiff despite the fact that no other inmate has informed this court that he did not receive a court filing from the Department of corrections as provided in the memorandum of understanding.

         At the hearing, Mr. Lewis also insisted on filing his jury instructions late, in contravention of the court's orders, and refused to proceed when his request was denied. Specifically, the court denied Plaintiff's request to file jury instructions during the trial rather than with the trial memorandum in accordance with Chambers Practices. [Dkt. 199.] The court explained jury instructions and other trial materials must be filed in advance of trial in order to allow the court sufficient time to consider them. Id. Plaintiff responded that he understood the court's June Order as stating Plaintiff did not need to file a trial memorandum because he was proceeding pro se. Id. The court explained the earlier Order stated Plaintiff was not required to file a joint trial memorandum with Defendants because he had previously refused. Id. (referencing Dkt. 112). The court further emphasized that the allowance to file his own trial memorandum did not award Plaintiff the right to file portions of the trial memorandum seven months after the trial memorandum deadline on the eve of trial or during trial. Id. The Plaintiff requested an exception, stating Defendants gave Plaintiff certain trial materials after the trial memorandum deadline. Id. The court asked defense counsel to recount the timing of his discovery productions. Id. Defense counsel responded that he went to the facility where Plaintiff was housed before the Joint Trial Memorandum deadline over the summer but Plaintiff refused to see defense counsel or accept the defense's portion of the joint trial memorandum. Id. Defense counsel then filed Defendants' own trial memorandum on the docket and sent those materials to Plaintiff after the trial memorandum deadline. Id. As defense counsel began this explanation, Plaintiff disrupted the proceedings, abruptly exited the Pretrial Conference, and shouted at the court: “I'm finished with your hearing. It's on the record that I objected to it. You can make whatever rulings you want to make, Judge, and I'll file my appeals as they're appropriate.” Id. The court informed the Plaintiff that he was not required to remain in the courtroom, after which the Plaintiff abruptly left the courtroom in a loud and disruptive manner. Id. As he exited he veered toward defense counsel, in a menacing manner and shouted “You're gonna [sic] lose this case.” Id.

         Plaintiff filed proposed jury instructions on December 22, 2016. [Dkt. 206.] Just five days later, on December 27, 2016, Plaintiff moved to continue the January jury selection and trial dates as his subpoenas for potential witnesses had not yet been served by the U.S. Marshal's Office. [Dkt. 208.] The Plaintiff had no basis to know whether his subpoenas had or had not been served. The court denied the request for continuance, stating that there was ample time to serve the subpoenas. [Dkt. 219.] However, to allay Plaintiff's concerns and avert anotherbarrage of filings, the court entered a superfluous order directing the U.S. Marshal's Office to promptly serve Plaintiff's subpoenas. [Dkt. 219.]

         Jury selection took place on January 3, 2017 and took three hours and 52 minutes. [Dkt. 221.] That same day, the parties attended a one hour and ten minute settlement conference with Magistrate Judge Richardson which did not lead to settlement. [Dkt. 222.] After jury selection Assistant Attorney General O'Neill informed Plaintiff and the court that prison officials planned to relocate Plaintiff to the Hartford Correctional Center (“HCC”) for trial. Plaintiff expressed concern that he would not have access to his belongings, including his legal material and the Assistant Attorney General representing the Defendants assured Plaintiff and the court that his belongings had been transported. [Dkt. 227 at 2.] HCC is in the same city as the courthouse in which the trial was to be held, and is considerably closer than Corrigan-Radgowski Correctional Center, in which Plaintiff was housed leading up to trial. It is customary for inmates to be relocated to a correctional facility close to the seat of court where their trial is being conducted. Plaintiff was relocated to HCC after jury selection. Department of Corrections Administrative Directive 60.10 requires that all inmate property be searched and inventoried before upon arrival at a facility. http://portal.ct.gov/DOC/AD/AD-Chapter-6.

         On January 5, 2017, the first day scheduled for the presentation of evidence, while the jury was waiting in the jury deliberation room, the court was informed that Plaintiff refused to enter the courtroom. In an effort to placate Plaintiff, the court directed a judicial assistant to find Plaintiff in the courthouse hallway and offer him a blazer provided by the court to wear in front of the jury. Plaintiff refused the gesture and refused to enter the courtroom. The court then met with Plaintiff in the atrium to ask him to enter the courtroom and present his grievance. The court's efforts were unavailing. Mr. Lewis was agitated, boisterous, and disrespectful towards the court. He refused to enter the courtroom and stated his intent to file an appeal. The court recorded the interaction and immediately thereafter played the recording on the record. Below is a transcription of the colloquy:

C: This is the first day of evidence in your trial. I asked my assistant to come out and bring you a sports coat to offer you an opportunity to wear that during the trial and she tells me that you're not coming into the courtroom, is that correct?
P: I don't have anything to say to you, Judge. I don't have anything to say to you. [Unintelligible]
C: You don't have to explain anything. I just want to make sure you understand that you have the right not to go forward with your trial, but if you make that decision, then I am going to dismiss the case today.
P: Do whatever you want, judge. But I'll tell you what. I'm not refusing to proceed with my trial. If you want to go into the court room, and have an ex parte, I'm happy to do that.
C: No, I don't care to have an ex parte about this. If you're not coming into the courtroom where the trial will be conducted, then you're declining to participate in your trial and therefore I will dismiss the case.
P: Yeah well, I'm sure the Second Circuit will wonder [unintelligible]. They will also wonder why I was transferred in the middle of jury selection and all my papers were confiscated - that I've been asking for since December. They will also wonder why the last three days I haven't had a shower haven't been given any of my clothes and my personal items have all been taken from me. They will also wonder why - about that.
C: So you're telling me that your materials -
P: -- the stuff that I left with on Tuesday -
C: -- from Corrigan were not transferred to Hartford?
P: No if you would listen, if you would listen for one minute. The stuff that I left with in the courtroom that I had with me on Tuesday was confiscated when I was brought there, to Hartford. And the stuff Ihad in Corrigan, I was not allowed to access that. The last 42 hours . . . I haven't showered, any of my clothes. I'm not going in front of the court smelling like whatever, haven't had any sleep or anything like that.
C: Mr. Lewis, please come into the courtroom.
P: I'm not going in the courtroom.
C: Listen to me . . .
P: I'm not going in the courtroom.
C: Would you please listen to me.
P: I am listening but I'm not going in no courtroom.
C: Mr. Lewis, the jury is not in the courtroom.
P: I don't care who's in there. I'm not going in front of the court, after being up for two or three days without a shower.
C: Mr. Lewis, you are in front of the Court. I would like a formal record of this. I want to make it in front of Mr. O'Neill who, if you recall, on Tuesday indicated that he was going to make an effort to get you those things . . .
P: I don't care what he said. [unintelligible]
C: Mr. Lewis, I want to make a complete record.
P: You can make a complete record, but I'm telling you right now, I'm not playing any more games.
C: Come into the courtroom.
P: I'm not coming in the courtroom. I haven't had a shower since the last time I saw you. I haven't seen any of my papers. I'm not playing any more games.
C: I understand. Mr. Lewis, I'm not asking you to appear before the jury today. I'm asking you.
P: I'm not appearing in front of nobody.
C: Alright, well that's your choice. If you want to resolve this, we can try to do that, but we have to deal with . . .
P: [unintelligible] I asked you to intervene on this on Tuesday before Mr. O'Neil, and you let him handle it, and you see what happened. I'm not playing any more games.
C: He's not here. He's in the courtroom. We can make a record of what happened in the courtroom.
P: You can make a record of whatever you want to make. I'm done playing games. The record will show all my papers was confiscated when I left here, I was transferred in the middle of jury selection. The stuff I have at Corrigan I've been asking for since December 7. What they tried to do is just drop it off . . . I haven't seen those papers since I left here. All my trial papers were confiscated. I want to talk to the FBI right now, file an obstruction of justice charge. That's who I want to talk to. I don't want to talk to no judge. I want to file an obstruction of justice. I want to talk to a federal agent. . . . If you want to drag me into the courtroom, I'm sure the press [members of which were present and attentiveto the colloquy] would like that. I'm just telling you, I haven't showered, I haven't brushed my teeth, I'm not going into any courtroom. It's as simple as that. It's as simple as that. You can take it as defiance, but I did ask you to intervene about this, but you decided to refer it to the Attorney General. . . . he's complicit in it . . . I'm going to ask them to investigate that as well.
C: Do you have anything else you would like to say?
P: No, I don't. I wish you would leave me alone. That's all I have to say.
D: I will do ...

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