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Duncan v. Nunez

United States District Court, W.D. Louisiana, Alexandria Division

November 6, 2019

MARCO DAMON DUNCAN, Plaintiff
v.
JOSE NUNEZ, ET AL., Defendants

          DRELL JUDGE.

          MEMORANDUM ORDER

          JOSEPH H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE.

         Before 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.

         Because 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.

         I. Background

         Duncan initiated this litigation pursuant to Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics[1] (Docs. 1, 16, 20) alleging that he was subjected to excessive force when he was incarcerated at the United States Penitentiary in Pollock, Louisiana.

         Duncan 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).

         II. Law and Analysis

         As with 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. 37(a)(4).

         Answers 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.” Fed.R.Civ.P. 37(c)(1).

         Section 1927 states:

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).

         Duncan 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 ...


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