.f 

IN THE UNITED STATES DISTRICT COURT 

. FOR THE WESTERN DISTRICT OF PENNSYLVANIA 

JAMES MARSHALL, ) 

) 

) 

) 

Plaintiff, 

vs. 

RAYMOND J. SOBIN A et al , 

Defendant. 

) Civil Action No. 10-169E 

) 

) 

) 

) 

OPINION AND ORDER 

Pending before this Court is pro se Plaintiff James Marshall's "Motion for Sanction" 

[ECF # 128]. In footnote 4 of her June 2, 2014 Report and Recommendation (R&R), wherein 

Magistrate Judge Baxter recommended that this Court grant in part and deny in part the 

Defendants' Motions for Summary Judgment and Partial Summary Judgment, Magistrate Judge 

Baxter noted: 

Plaintiff has also filed a Motion for Sanctions pursuant to Federal Rule 3 7 which 

remains pending. ECF No. 128. See also ECF Nos. 130, 131. The bases of this 

motion are Exhibits 20, 21, 22, and 23 attached to the Department of Corrections 

Defendants' motion for summary judgment. Plaintiff argues that Defendants 

should be sanctioned due to their failure to disclose or supplement their answers 

to Interrogatories. Resolution of this motion and attendant issues of forgery of 

evidence will necessarily affect evidentiary rulings for trial and, as such, will be 

left for the trial judge to determine." 

In his motion, Plaintiff contends that the Department of Corrections ("DOC") Defendants 

failed to disclose four (4) documents in discovery, even though specifically asked for in his 

Request for Interrogatories to Defendant Sobina on November 7, 2010, and his Request for 

Interrogatories to Defendant McConnell on December 12,2011. Therefore, Plaintiff submits, 

these defendants should be precluded from using the exhibits and he should receive monetary 

Case 1:10-cv-00169-MBC Document 150 Filed 03/19/15 Page 1 of 7
compensation for having to file a response to two motions for summary judgment filed by the 

DOC Defendants. Plaintiffs Motion, pp. 2-3. The documents, which are attached as exhibits in 

support of the DOC Defendants' pending motion for partial summary judgment, are: (1) Exhibit 

20, which contains SCI-Albion search logs from February 2 and 14, 2010 and March 3, 2010; (2) 

Exhibit 21, Inmate Jack Williams' Cell History; (3) Exhibit 22, Inmate Thomas Chadwick's Cell 

History; and (4) Exhibit 23, SCI-Albion Duty Rosters from February 14, 2010 and March 8, 

2010. 

I d. 

Fed.R.Civ.P. 37(c)(1) states: 

(1) Failure to Disclose or Supplement. If a party fails to provide information or 

identify a witness as required by Rule 26(a) or (e), the party is not allowed to use 

that information or witness to supply evidence on a motion, at a hearing, or at a 

trial, unless the failure was substantially justified or is harmless. In addition to or 

instead of this sanction, the court, on motion and after giving an opportunity to be 

heard: 

(A) may order payment of the reasonable expenses, including attorney's 

fees, caused by the failure; 

(B) may inform the jury of the party's failure; and 

(C) may impose other appropriate sanctions, including any of the orders 

listed in Rule 37(b)(2)(A)(i)-(vi). 

In support of their contention that the motion for sanctions should be denied, the DOC 

Defendants explain the reason for the late disclosure to Plaintiff: 

the reason undersigned counsel recently searched for and submitted the 

documents concerning Inmate Williams' and Chadwick's cell histories, search 

logs and duty rosters, was because of the error she had made in then-Captain 

White's declaration for defendants' original summary judgment motion. This 

particular error, which Captain White also failed to catch before signing, was a 

reference to the wrong date (2/2/1 0 not 2/14/1 0) in describing a search of 

plaintiffs cell when Chadwick was his cell mate. Plaintiffs cell (CB 1003) was 

searched on 2/2110 (the date of the cheese incident), and his cell mate at the time 

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was Inmate Williams. Cell CB 1003 was searched again on 2/14110, at which 

point, Inmate Chadwick was plaintiffs cellmate. A broken razor belonging to 

Chadwick was found, and this led to the investigative search on 3/8/10 (the cell 

occupants were still plaintiff and Chadwick). Unfortunately, when counsel 

prepared the original Declaration for then Captain White, she mistakenly referred 

to "2/2110" when describing the 2/14/10 search where contraband was found. 

DOC Defendants' Response to Plaintiffs Motion for Sanction. p. 2 (footnote and citation to 

court docket omitted). The DOC Defendants further argue: 

When she filed the original motion for summary judgment, [counsel for the DOC 

Defendants] failed to recognize the extent to which the searches were at issue in 

the case, and did not anticipate the need to prove who was celled where. The 

focus of the Complaint and discovery had been on the alleged excessive force 

incident involving CO Hewitt in late January, plaintiffs medical care for his 

claimed injuries, and the loss of his dietary job. Accordingly, she did not devote 

the time and effort to obtain and review cell history, search and roster documents 

in connection with her original motion. 

Nor had counsel obtained these records in the course of discovery. Counsel did 

not have these documents prior to September 2013 and had not asked anyone to 

look for them in connection with discovery. She and prior counsel did not 

recognize the potential relevance of these documents at the time of preparing 

responses to plaintiffs broad, catch-all discovery requests. Indeed, their relevance 

did not become apparent until the summary judgment process. 

Counsel admits that the duty rosters have come to be an important piece of 

evidence for the defense in this case, particularly as they show that Lt. 

McConnel[!] was not working on several of the search days. Again, counsel 

unfortunately did not question or doubt plaintiffs general description of events 

and failed to realize the extent of this pro se plaintiffs claims when it came to the 

search issue, particularly since he had been fairly vague on the search days other 

than 3/8/10. 

In sum, counsel submits that given the broad nature of plaintiffs claims, it was 

not clear at the time she was responding to discovery that the documents at issue 

(rosters, cell histories, logs) (i) even existed, and/or (ii) were responsive to 

plaintiffs requests. That became apparent much later, when preparing Objections 

to the R&R, and counsel provided copies to plaintiff with that filing. 

Id. at pp. 3-4 (footnote omitted. 

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Turning to Plaintiffs discovery requests, on November 7, 2010 Plaintiff served the 

following interrogatory to Defendant Sobina: "Do you, your attorney, or any person employed 

by you or your attorney, have possession or know of the existence of any books[,] records, 

reports made in the ordinary course of business, other printed or documented material, or 

photographs, or other tangible objects that are relevant to the conduct described with the plaintiff 

complaint or in these interrogatories?" Plaintiff's First Set oflnterrogatories, ~ 25. Defendant 

Sobina responded: "The responding does not have possession of any documents relating to the 

above-captioned case as he is currently retired." Defendant Sobina's Response to Plaintiff's First 

Set oflnterrogatories, ~ 25. 

Plaintiff filed a motion to compel Sobina to answer that and other requests. Essentially he 

argued that the information sought was reasonably calculated to lead to the discovery of 

admissible or relevant evidence and here "this Defendant belatedly continued to evasively assert 

'he does not recall' and 'he no longer has access to this information because he is retired," which 

is insufficient. Brief in Support of Motion to Compel, p. 2. A hearing was held and Magistrate 

Judge Baxter denied Plaintiff's motion to compel as to number 25. 

On December 2, 2011, Plaintiff submitted the following interrogatory to Defendant 

McConnell: "Are you aware of any statements, documents, photographs, recordings, videotapes, 

reports or other materials concerning the incidents described in the Complaint. If so, please 

describe and please produce." Plaintiff's First Set oflnterrogatories, ~ 15. Defendant McConnell 

responded: "This request is Objected to as seeking information that is too general, overbroad 

and unduly burdensome. Without waiver of this objection, see attached documents and 

documents provided throughout discovery." Defendant McConnell's Response to Plaintiffs First 

Set oflnterrogatories, ~ 15. 

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.. 

The following was alleged in Plaintiffs Complaint: 

42. On 1/29/2010 Defendant McConnell was assigned the grievance officer for 

grievance #306245. Thereafter, Defendant Lt. McConnell began to target the 

plaintiff, he continuously kept the security surveil[l]ance camera on the plaintiff 

and his cell. 

43. On 2/2/2010 Defendant Lt. McConnell called CB housing unit Officer Fie, Lt. 

McConnell directed this Officer (Fies) to stop inmate Day #GX-6976 to find out 

what was in his pocket. Inmate Day had cheese in his pocket which he didn't 

receive from the plaintiff. Defendant Lt. McConnell directed this officer to 

fabricate a misconduct report on the plaintiff #8144269 and confiscation receipt 

#Bl00055. 

44. Defendant Lt. McConnell directed this officer to fabricate this inmate 

received the cheese from the plaintiff and vindictively that this officer to request 

the plaintiff be removed from his job in the report. He also directed this officer to 

fabricate this cheese was confiscate[d] from the plaintiff, when inf[a]ct it was 

confiscated from inmate Day. 

45. Defendant Lt. McConnell further directed this officer to prevent the plaintiff 

from entering his cell two hours for his cell be search. The plaintiff cell was 

search and left in disarray. No item of contraband or any dietary, items was found. 

Inmate Day cell was not search nor was he restricted from entering his cell. 

46. On 2/10/2010 the plaintiff cell was search again by officer Summers and 

another officer. This other officer mention to the plaintiff cellmate they were told 

to take care of us and asked what did your cellie do (the plaintiff), the plaintiff 

cell again was left indisarray. 

47. On 2/14/2010 the plaintiff cell was again search by officer Odum and 

provident. The Plaintiff cell was again left in disarray. These acts of retaliation 

were reported in grievance #308316. 

52 .... on 2/13/2010 while at work in dietary the plaintiff was sent back to his 

housing unit for stretching by Defendant Breckenride, the plaintiff asked 

Defendant Breckenride why was he doing this and the Defendant told him he was 

just doing his job that he was told if I do anything I'm to be written up and 

removed from his job. Defendant Breckenridge wrote misconduct #A913573 

requesting the plaintiff please be removed form this Job also fabricating exercise 

the plaintiff wasn't doing. 

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Case 1:10-cv-00169-MBC Document 150 Filed 03/19/15 Page 5 of 7
53. The plaintiff filed a grievance for retaliation #30821 0 on CFSI Breckenfidge. 

Defendant Breckenridge also told another inmate he was told to write up the 

plaintiff for anything and remove him from his job. 

56 .... On 3/1/2010 the plaintiff spoke with Defendant Sobina about Defendant 

McConnell retaliation of having the plaintiff removed from his job, Defendant 

Sobina told the plaintiffthat they cannot remove him from his job and to send you 

a request of staff. 

58. On 3/8/201 0 a investigative search was performed on the plaintiff and his cell. 

The plaintiff was stripe search and cell left in disarray I was told Defendant 

McConnell ordered the search they were to look around regarding something 

about a law suit. The plaintiff gained information from inmate Butler event 

happen because Defendant Sobina was on the housing unit and called captained 

White and order the captain to give the plaintiff temperture check the guy who is 

giving medical problem, . . . this was reported in grievance #311543. 

Complaint,~ 42-47, 52-53, 56 and 58 (citations to exhibits omitted). 

Turning to the documents at issue, we conclude as follows. With respect to Exhibits 21 

and 22, the cell histories of Williams and Chadwick, Plaintiffs cellmates on the dates when 

Plaintiffs cell was searched, we find that the late production of these documents to Plaintiff was 

substantially justified and harmless because there is no factual dispute between the parties as to 

who was Plaintiffs cell mate on the dates of the searches; the cell histories were only needed to 

prove the factual error in Jeffrey White's Declaration concerning the date Plaintiff and 

Chadwick's cell was searched and that error was not discovered until September 2013 at which 

time Plaintiff was given the documents. Second, with respect to Exhibit 20, the search logs, we 

find that the late production of this document to Plaintiff is harmless; again, there is no factual 

dispute between the parties as to who was Plaintiffs cell mate at the time of each search. Nor is 

there is a factual dispute as to whether and when Plaintiffs cell was searched and what, if 

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Case 1:10-cv-00169-MBC Document 150 Filed 03/19/15 Page 6 of 7
anything, was found. Finally, with respect to Exhibit 23, the duty rosters, we find that the late 

production of this document to Plaintiff, which was submitted to support the DOC Defendants' 

position in their Motion for Partial Summary Judgment that Defendant McConnell was not 

working on February 14, 2010 or March 8, 2010 and therefore could not have retaliated against 

Plaintiff on those days, was harmless. We so find because, as Magistrate Judge Baxter concluded 

in her R&R: "whether McConnell was working on the dates of these two cell searches is of no 

moment to the analysis at hand. McConnell's absence from facility on any given day does not 

demonstrate that he did not orchestrate a campaign of retaliation against Plaintiffby directing 

others to conduct the cell searches on these dates." R&R, p. 32. 

Having concluded that the DOC Defendants' late production of each of the four 

documents was either substantially justified and/or harmless, Plaintiffs Motion for Sanctions is 

denied. 

An appropriate Order follows: 

ORDER 

1M, 

AND NOW, this I 'l th day of March, 2015, it is HEREBY ORDERED, 

ADruDGED AND DECREED that Plaintiffs Motion for Sanction [ECF #128] is DENIED. 

7 

1M~u~ ~· (3, ~~ . Maunce B. Cohrll, Jr. 

Senior District Court Judge 

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