United States District Court, W.D. Louisiana, Alexandria Division
H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE.
the Court is a Motion for Sanctions for Discovery Abuse (Doc.
202) filed by pro se Plaintiff Marco Damon Duncan
(“Duncan”) (#37679-048). Duncan is an inmate in
the custody of the Federal Bureau of Prisons incarcerated at
the United States Penitentiary in Florence, Colorado.
there is no evidence that Defendants have abused the
discovery process or that inconsistencies in response to
discovery were willfully or intentionally false or
misleading, Duncan's Motion for Sanctions for Discovery
Abuse (Doc. 202) is DENIED.
initiated this litigation pursuant to Bivens v. Six
Unknown Agents of the Federal Bureau of
Narcotics (Docs. 1, 16, 20) alleging that he was
subjected to excessive force when he was incarcerated at the
United States Penitentiary in Pollock, Louisiana.
seeks sanctions under Fed.R.Civ.P. 37(c), 28 U.S.C. §
1927, and the Court's inherent authority, for
Defendants' alleged failure to truthfully answer
Duncan's discovery requests. (Doc. 202, pp. 1-3).
Specifically, Duncan contends Defendants responded to initial
discovery with allegedly false statements which were later
corrected after Duncan was forced to file repeated discovery
requests. (Doc. 202, p. 3).
Law and Analysis
Rule 26(a)(1) initial disclosures, parties and their
attorneys have a duty to timely supplement or correct answers
to discovery if they learn “that in some material
respect the disclosure or response is incomplete or
incorrect, and if the additional or corrective information
has not otherwise been made known to the other parties during
the discovery process or in writing.” Fed.R.Civ.P.
26(e)(1)(A). Additionally, for the purposes of Rule 37(a), an
evasive or incomplete disclosure, answer, or response must be
treated as a failure to disclose or respond. Fed.R.Civ.P.
to interrogatories must be in writing, under oath, and signed
by the person answering them. Fed.R.Civ.P. 33(b). In
addition, Rule 26(g)(1) requires that “[e]very
disclosure . . . and every discovery response . . . be signed
by at least one attorney of record . . . or by the party
personally, if unrepresented.” Fed.R.Civ.P. 26(g)(1).
By signing, an attorney certifies - to the best of the
attorney's knowledge, information, and belief formed
after a reasonable inquiry - that a discovery response is
“consistent with these rules and warranted by existing
law or by a nonfrivolous argument . . ., not interposed for
any improper purpose.” Fed.R.Civ.P. 26(g)(1)(B).
“If a certification violates [Rule 26(g)] without
substantial justification, the court . . . must impose an
appropriate sanction on the signer, the party on whose behalf
the signer was acting, or both.” Fed.R.Civ.P. 26(g)(3).
Likewise, a party is subject to sanctions under Rule 37(c)(1)
if the “party fails to provide information or identify
a witness as required by Rule 26(a) or (e), . . . unless the
failure was substantially justified or is harmless.”
Any attorney or other person admitted to conduct cases in any
court of the United States or any Territory thereof who so
multiplies the proceedings in any case unreasonably and
vexatiously may be required by the court to satisfy
personally the excess costs, expenses, and attorneys'
fees reasonably incurred because of such conduct.
28 U.S.C. § 1927. To award sanctions under § 1927,
the court must find the sanctioned attorney both
“unreasonably” and “vexatiously”
multiplied the proceedings. See F.D.I.C. v. Calhoun,
34 F.3d 1291, 1297 (5th Cir. 1994). To satisfy this burden, a
court must have “evidence of bad faith, improper
motive, or reckless disregard of the duty owed to the
court.” Procter & Gamble Co. v. Amway
Corp., 280 F.3d 519, 525 (5th Cir. 2002). This standard,
which “focuses on the conduct of the litigation and not
on the merits, ” requires “clear and convincing
evidence ‘that every facet of the litigation was
patently meritless.'” Bryant v. Military
Dep't of Miss., 597 F.3d 678, 694 (5th Cir. 2010)
(quoting Procter & Gamble Co., 280 F.3d at 526).
Furthermore, sanctions under § 1927 are punitive in
nature, and courts have strictly construed § 1927 so as
not to dampen “the legitimate zeal of an attorney in
representing her client.” Browning v. Kramer,
931 F.2d 340, 344 (5th Cir. 1991).
asserts a Second Set of Interrogatories were propounded on
Defendant Morris on May 1, 2019. (Doc. 202-1, p. 1). Duncan
contends Morris's June 12, 2019 response to Interrogatory
No. 7 provided a false statement, as shown by Defendants'
Admissions to ...