United States District Court, D. Connecticut
MEMORANDUM OF DECISION DISMISSING CASE
Vanessa L. Bryant, United States District Judge
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.
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.
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.]
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.]
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.]
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.]
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.].
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.
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.
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.
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. [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.
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.]
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.
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.
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
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.
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.
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
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 ...