Opinion
CIVIL CASE NO. 99-40333.
August 20, 2001
OPINION and ORDER
Before the Court is Defendants' renewed motion for summary judgment [docket entry 45]. Having considered the parties' written submissions and having entertained oral argument in open court on August 1, 2001, the Court will grant Defendants' motion for the reasons set forth below.
I. BACKGROUND
Defendant Chuck Pappas is a City of Troy, Michigan policeman. Defendant James Mueller is a special agent for the U.S. Drug Enforcement Administration ("DEA"). Defendant Gregory Edwards is an investigator with the City of Detroit Police Department. Defendant Donald Hughes is an investigator with the City of Detroit Police Department. All named Defendants were members of the "REDRUM" Task Force operated by the Detroit Field Division Office of the DEA. The Task Force investigates narcotics-related murders in and near Detroit. Defendant "John Doe #1" is a City of Novi police officer whom Plaintiff could not identify when she filed her complaint.
On August 25, 1997, Defendants participated in the warrantless arrest of Plaintiff for the murder of Salwan Asker. Police effected Plaintiff's arrest after receiving information from confidential informants, discussed infra, and with the knowledge that Mr. Asker had testified against two of Plaintiff's relatives in a criminal case. After arresting Plaintiff, police applied handcuffs to Plaintiff's wrists and took Plaintiff to Detroit Police Headquarters. At police headquarters, Defendants participated in the interrogation of Plaintiff.
After they had detained Plaintiff for roughly twenty-seven hours, and after Plaintiff had passed a succession of polygraph examinations, police released Plaintiff from custody. Neither Plaintiff nor anyone else has, to date, been charged with a crime in relation to the death of Salwan Asker.
On April 24, 2000, Plaintiff filed her third amended complaint arising from this course of events. Plaintiff alleges two causes of action. First, she alleges that Defendants seized her unlawfully in violation of the Fourth and Fourteenth Amendments to the U.S. Constitution. Second, she alleges that Defendants conspired to violate her rights under the Fourth and Fourteenth Amendments. Plaintiff sues each Defendant in his individual and official capacities. Defendants now move for summary judgment as to both of those claims.
II. LEGAL STANDARD
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Summary judgment is appropriate where the moving party demonstrates that there is no genuine issue of material fact as to the existence of an essential element of the nonmoving party's case on which the nonmoving party would bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Martin v. Ohio Turnpike Commission, 968 F.2d 606, 608 (6th Cir. 1992).
In considering a motion for summary judgment, the Court must view the facts and draw all reasonable inferences therefrom in a light most favorable to the nonmoving party. 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987). The Court is not required or permitted, however, to judge the evidence or make findings of fact. Id. at 1435-36. The moving party has the burden of showing conclusively that no genuine issue of material fact exists. Id. at 1435.
A fact is "material" for purposes of summary judgment where proof of that fact would have the effect of establishing or refuting an essential element of the cause of action or a defense advanced by the parties.Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984). A dispute over a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Accordingly, where a reasonable jury could not find that the nonmoving party is entitled to a verdict, there is no genuine issue for trial and summary judgment is appropriate.Id.; Feliciano v. City of Cleveland, 988 F.2d 649, 654 (6th Cir. 1993).
Once the moving party carries the initial burden of demonstrating that no genuine issues of material fact are in dispute, the burden shifts to the nonmoving party to present specific facts to prove that there is a genuine issue for trial. To create a genuine issue of material fact, the nonmoving party must present more than just some evidence of a disputed issue. As the United States Supreme Court has stated, "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the [nonmoving party's] evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted); see Celotex, 477 U.S. at 322-23; Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Consequently, the nonmoving party must do more than raise some doubt as to the existence of a fact; the nonmoving party must produce evidence that would be sufficient to require submission of the issue to the jury.Lucas v. Leaseway Multi Transportation Service, Inc., 738 F. Supp. 214, 217 (E.D.Mich. 1990), aff'd, 929 F.2d 701 (6th Cir. 1991). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252; see Cox v. Kentucky Department of Transportation, 53 F.3d 146, 150 (6th Cir. 1995).
III. ANALYSIS
Defendants argue that the doctrine of qualified immunity prevents Plaintiff from reaching a jury with her claims. When ruling upon a governmental actor's assertion of qualified immunity from suit, the Court must resolve two distinct, sequential questions. Saucier v. Katz, 121 S.Ct. 2151, 2156 (2001). The plaintiff bears the burden of demonstrating that the answer to each of the following two questions is affirmative.See, e.g., Hansen v. LaMontagne, 808 F. Supp. 89, 92 (D.N.H. 1992).
First, the Court must decide whether the facts, taken in the light most favorable to the party asserting the injury, show that the defendant's conduct violated a constitutional right. Saucier, 121 S.Ct. at 2156. In answering this inquiry, the Court might have to enunciate principles that would, prospectively, form the "basis for holding that a right is clearly established."
A negative answer to this question would end the inquiry in the defendant's favor; an affirmative answer would require the Court to address the second and final issue: whether the right was clearly established. Id. For a right to be clearly established, the determinative inquiry "is whether it would be clear to a reasonable [defendant] that his conduct was unlawful in the situation he confronted." Id. (quotingWilson v. Layne, 526 U.S. 603, 615 (1999)). If the Court were to decide that the right allegedly violated was not clearly established, the doctrine of qualified immunity would shield the defendant from suit. The Court's conclusion that the right was clearly established, conversely, would mean that qualified immunity is no obstacle to a continuation of the suit.
Because the purpose underlying qualified immunity is to "avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment," the Court must rule on a defendant's assertion of qualified immunity early in the proceedings.Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
A. Whether, Viewing the Evidence in the Light Most Favorable to Plaintiff, Defendants Violated Any of Her Rights
The Court now turns to the issue of whether the facts, taken in the light most favorable to Plaintiff, show that Defendants' conduct violated a constitutional right. Plaintiff argues for an affirmative answer to this question because, in her view, Defendants violated clearly established constitutional rights by:
(1) "arresting her without probable cause on August 25, 1997"; (2) "detaining her overnight"; (3) "verbally harassing her"; and (4) "denying her permission to contact her family to advise them of her whereabouts." (Pl. Resp. at ¶ 1.)
i. Whether, Plaintiff's Claim Based on Her Alleged Arrest and Detention Without Probable Cause Survives Defendants' Assertion of the Doctrine of Qualified Immunity
The Fourth Amendment prohibits a warrantless arrest without probable cause. Probable cause exists when the "facts and circumstances within the arresting officer's knowledge `were sufficient to warrant a prudent man in believing that the [arrestee] had committed or was committing an offense.'" Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir. 1995) (quotingBeck v. Ohio, 379 U.S. 89, 91 (1964)). Usually, the existence of probable cause is a question of fact. Id.
Defendants argue that, viewing the facts in the light most favorable to Plaintiff, they still had probable cause to effect her arrest for the murder of Salwan Asker. For this proposition, Defendants rely on the following factors:
1. On April 10, 1997, the body of Salwan Asker was found lying in the street in Detroit, Michigan, during the middle of the night. (Exhs. 3-6: Answers to Interrogs. No. 16; Attachments A and C to Keefe Declaration).
2. The autopsy of Salwan Asker's body showed that he had been shot in the back of the head at close range, consistent with an execution style murder. (Exhs. 3-6: Answers to Interrogs. No. 16; Attachments A, C, D, and M to Keefe Declaration).
3. During the early 1990's Salwan Asker, the deceased, had testified against several members of the Kalasho drug trafficking organization in Detroit, Michigan. DEA relocated Asker out of state for reasons of personal and family safety due to a fear of retaliation in response to his having testified against the Kalasho organization defendants. (Exhs. 3-6: Answers to Interrogs. No. 16, Keefe Declaration, ¶ 6; Attachments A, C, D, E, H, and L to Keefe Declaration).
4. The Kalasho drug-trafficking organization was extremely violent, and was deemed responsible for multiple death threats, acts of harassment, and murders. (Exhs. 3-6: Answers to Interrogs. No. 16, Keefe Declaration, ¶ 6; Attachments C, D, and H to Keefe Declaration).
5. Plaintiff had at least two close relatives, a brother and a cousin, who were members of the Kalasho organization. These relatives were prosecuted, convicted, and imprisoned for offenses related to drug-trafficking, based in part on the testimony and cooperation of Salwan Asker. (Exhs. 3-6: Answers to Interrogs. No. 16, Keefe Declaration, ¶ 6; Attachments C, E, H, and L to Keefe Declaration).
6.Various informants and/or sources informed law enforcement personnel that in early 1997, plaintiff contacted Salwan Asker by telephone at his out-of-state location and offered him $5,000 to $10,000 and travel expenses in an effort to lure him back to Detroit to provide a videotaped statement recanting his previous testimony against plaintiff's relatives who were in prison as a result of their criminal convictions. (Exhs. 3-6: Answers to Interrogs. No. 16, Keefe Declaration, ¶ 6; Attachments A, C, E, H, and L to Keefe Declaration; see also Attachment I for modus operandi of Kalasho organization).
7. Various informants and/or sources informed law enforcement personnel that days prior to his death, Salwan Asker returned to the Detroit metropolitan area at plaintiff's request. Plaintiff arranged and paid for [a] flight to Detroit and his stay at motels in the Detroit area. (Exhs. 3-6: Answers to Interrogs. No. 16, Keefe Declaration, ¶ 6; Attachments A, B, C, E, H, and L to Keefe Declaration).
8. Various informants and/or sources informed law enforcement personnel that during the days prior to his death, Salwan Asker was in frequently [sic] contact with plaintiff, both in person and by telephone. (Exhs. 3-6: Answers to Interrogs. No. 16, Keefe Declaration, ¶ 6; Attachments A, B, C, E, H, and L to Keefe Declaration).
9. Motel records and telephone records corroborated the above information. (Exhs. 3-6: Answers to Interrogs. No. 16, Keefe Declaration, ¶ 6; Attachments A, B, C, H, and L to Keefe Declaration).
10. Various informants and/or sources reported that shortly before his death, Salwan Asker expressed distrust and fear of plaintiff. (Exhs. 3-6: Answers to Interrogs. No. 16; Attachments A(¶¶ 5 and 9) and H (¶¶ 4 and 5) to Keefe Declaration).
11. Various informants and/or sources reported that plaintiff was in the presence of Salwan Asker on the day of his death, and during the days leading up to his death. (Exhs. 3-6: Answers to Interrogs. No. 16; Attachments A, H, and L to Keefe Declaration).
Regarding the information provided by confidential informants, this Court, as per Magistrate Judge Wallace Capel, Jr., denied Plaintiff's motion to compel discovery on March 30, 2001. However, there is evidence in the form of Plaintiff's exhibits three through six, which are signed answers to interrogatories admissible under Rule 56(c), that Defendants had knowledge of each of the eleven factors noted above that Defendants adduce to show that they had probable cause to arrest Plaintiff.
Plaintiff relies primarily on those same factors, and Defendant Mueller's deposition testimony to the effect that he knew before Plaintiff's arrest that it was possible that Mr. Asker had recorded a statement in which he recanted his trial testimony against Plaintiff's relatives. (Pl. Br. at 8-11.) This evidence, in Plaintiff's view, supports her theory that, far from there being probable cause to believe that she had murdered Mr. Asker, a reasonable jury would more likely conclude that "the factors articulated by the Defendants reveal a pattern of conduct in which [Plaintiff] befriended Mr. Asker, assisting him in a number of ways including paying for his accommodations, providing transportation, feeding him and, in general, acquiescing to his many demands occasioned by his drug dependency and resulting poor health." (Pl. Br. at 8.)
The Court's in camera review of Defendants' sealed materials regarding the confidential informants reveals that at least one informant told police that Mr. Asker had expressed distrust and fear of Plaintiff shortly before Mr. Asker was found with a bullet in the back of his skull. If credible, that piece of information, combined with Plaintiff's undisputed access to Mr. Asker, would suffice to create probable cause to believe that Plaintiff had committed the murder. Cf. Johnson v. State, 249 N.W.2d 593, 596-97 (Wis. 1977) (concluding that probable cause existed where, inter alia, the victim expressed fear of the defendant shortly before her murder and the defendant was identified near the victim shortly before the murder); People v. James, 626 N.E.2d 1337, 1344-45 (Ill.Ct.App. 1993) (concluding that probable cause to arrest the defendant for arson existed where police knew, inter alia, that the victim expressed fear of the defendant and the defendant was seen near the crime scene one-half hour before the arson); Woodward v. State, 668 S.W.2d 337, 337-47 (Tex. Ct. Crim. App. 1982) (concluding that probable cause existed where, inter alia, the murder victim had expressed fear of the defendant and the defendant was found 90 miles from the crime scene). The question thus becomes whether, viewing the facts in the light most favorable to Plaintiff, that tip was credible.
In most cases, an informant's tip is credible enough to create probable cause if (1) the police have corroborated aspects of a detailed tip or (2) the informer had a record of providing reliable information. United States v. Williams, 114 F. Supp.2d 629, 633 (E.D.Mich. 2000) (Gadola, J.). The Court's in camera review of the Keefe Declaration, which details what Defendants knew about their informants, shows that the informant who told police that Mr. Asker proclaimed his distrust of Plaintiff shortly before his murder was an informer who was highly reliable because of the informer's access to Mr. Asker and the detailed nature of the tip that the informer provided. Having corroborated details of this informer's tip, police were in a position from which it was reasonable for them to credit the informer. The other informants upon whom police relied also had a history of providing accurate tips during the DEA's investigation of the Kalasho drug trafficking organization in Detroit.
Because the Keefe Declaration shows that the informants were reliable, the Court concludes that, viewing the evidence in the light most favorable to Plaintiff, Defendants' conduct did not violate Plaintiff's constitutional right not to be seized and detained in the absence of probable cause. The Court also concludes that there is no genuine issue of material fact as to this issue because Plaintiff has not adduced evidence from which a reasonable jury could conclude that Defendants lacked probable cause to arrest and detain Plaintiff.
Plaintiff has therefore failed to overcome prong one of the qualified immunity analysis; i.e., she has not demonstrated that the facts, taken in the light most favorable to Plaintiff, show that Defendants' conduct violated a constitutional right to be free of seizure without probable cause. A fortiori, the Court holds in the alternative that Defendants violated no clearly-established right of Plaintiff's. Accordingly, prong two of the qualified-immunity analysis also shields Defendants from suit.
iii. Whether Plaintiff's Claim Based on Defendants' Alleged "Verbal Harassment" of Her and Their Denial of Permission for Plaintiff to Contact Her Family While She Was Detained Survives Defendants' Assertion of the Doctrine of Qualified Immunity
As to Plaintiff's assertion of "verbal harassment," Plaintiff argues that Defendants "displayed their weapons, screamed and yelled" at Plaintiff, pounded on a table in front of Plaintiff, and detained Plaintiff overnight. Plaintiff maintains that all of these acts were "tactics" that violated the Fourth Amendment.
Plaintiff adduces no authority for the proposition that any of these acts violates the Constitution, and the Court is aware of none. In fact, policemen's mere display of a holstered weapon and verbal abuse of a suspect, at least during the process of arresting that suspect, do not violate the Fourth Amendment. See Collins v. Nagle, 892 F.2d 489, 496-97 (6th Cir 1989).
Regarding Defendants' alleged refusal to allow Plaintiff to call her relatives,3 Plaintiff relies on one case to establish a pretrial detainee's right to call relatives. That case is Tucker v. Randall, 948 F.2d 388 (7th Cir. 1991). In Tucker, however, the pretrial detainee was not allowed to call anyone, including his lawyer, for four days. Id. at 389. Here, the evidence shows that Plaintiff was not allowed to call any family members during her detention. There is no credible evidence that Defendants refused to allow Plaintiff to call a lawyer. This case is thus more like Harrill v. Blount County, 55 F.3d 1123 (6th Cir. 1995), in which a pretrial detainee was not allowed to call her father but could have called a lawyer. Id. at 1125. In that case, the Sixth Circuit held that the plaintiff's Fourteenth Amendment rights were not violated. Because of the factual similarities between this case and Harrill, the Court holds that Defendants' refusal to allow Plaintiff to call her relatives did not violate the Constitution.
Because Plaintiff has failed to adduce evidence that, viewed in the light most favorable to Plaintiff, could establish a violation of the Fourth or Fourteenth Amendments on the basis of Defendants' alleged "verbal harassment" or refusal to allow Plaintiff to contact her family members, the Court concludes that Defendants' "tactics" have violated no right of Plaintiff's and Defendants are therefore insulated from suit.
A fortiori, the Court holds in the alternative that the doctrine of qualified immunity also shields Defendants from suit because Defendants violated no clearly established right of Plaintiff's to be free of "verbal harassment" or to be allowed to call family members.
IV. CONCLUSION
For the reasons set forth above,
IT IS HEREBY ORDERED that Defendants' motion for summary judgment is GRANTED.
SO ORDERED.
ORDER
On June 22, 2001, this Court ordered that Attorney David S. Steingold (P29752) appear on July 12, 2001 and show cause as to why he should not be sanctioned for recklessly or in bad faith filing a motion for a new trial. On July 12, 2001, a hearing was held on this matter before the Honorable Paul V. Gadola, and all parties were given an opportunity to appear and argue in support of or in opposition to the imposition of sanctions. For reasons set forth below, this Court imposes sanctions on Attorney Steingold for reckless conduct.
Factual and Procedural Background
On June 11, 2001, Attorney Steingold filed a Motion for a New Trial asserting the following:
Juror Williams-Robinson, the fore-person of the jury that convicted Defendant Audie Wheeler, had improper communications with persons outside the jury regarding the case while it was being tried, had improper communications with other jurors in the case while the matter was being tried and failed to inform this Court of her familiarity with Defendant Audie Wheeler both before and during the trial of this case.
(Def. Mot. ¶ 4.) Attorney Steingold attached an affidavit from Krystal Butterfield who averred that, "Ms. Williams-Robinson was a juror in the Federal Court Trial of Audie Wheeler" (Butterfield Aff. ¶ 3), that "Ms. Terinna May [is] the daughter of Ms.
Williams-Robinson (id. ¶ 2), and that on several occasions during the course of the trial Ms. Williams-Robinson had conversations with Ms. May and other jurors about the substance of the court proceedings and the jury's projected verdict (see id. ¶¶ 4-11).
The affidavit was signed by Butterfield on May 25, 2001 and was notarized by Attorney and Notary Public Tracie D. Palmer (P53555) in the "State of Michigan," "County of Wayne" as follows: "On this 25th day of May, 2001, before me personally appeared Krystal Butterfield to me known to be the person(s) described herein, and who executed the foregoing instrument, and she acknowledged that she voluntarily executed the same." (Id. at 2.) Attorney Steingold stated that other witnesses would attest at a hearing to facts similar or identical to those presented by Butterfield. (See Def. Mot. ¶ 6.)
In response, the Government attached a copy of the peremptory challenge sheet showing that Attorney Steingold, in his own-handwriting, exercised a peremptory challenge and dismissed Ms. Williams-Robinson before the jury was impanelled. (See Gov't Attach. 3.) The Government also attached the "Jury Sign In Sheet" showing that Ms. Williams-Robinson was not among the jurors in this case (see Gov't Attach. 4), and a copy of the Verdict Form showing that the jury fore-person was Kevin M. Berryman (see Gov't Attach. 1). Thus, Attorney Steingold should have been well aware that Ms. Williams-Robinson was not the fore-person and was not even a juror.
On June 22, 2001, this Court ordered Attorney Steingold to appear and show cause as to why he should not be sanctioned for recklessly or in bad faith filing a motion for a new trial because the most basic inquiry under the circumstances would have revealed that his allegations as to Ms. Williams-Robinson had no evidentiary support. This Court also subpoenaed Krystal Butterfield, the affiant who supported Attorney Steingold's contentions.
This Court subsequently received a letter from Attorney Steingold dated June 21, 2001 and addressed to Assistant United States Attorney Mark C. Jones. In that letter, Attorney Steingold stated that,
Prior to sentencing, I was contacted by several individuals who swore that a young lady name[d] Terrina May had discussed the trial in which her mother was a sitting juror. No-one was quite certain of the mother's last name as she had been married numerous times, but they all insisted that she was on the Wheeler jury and had made statements that you saw in the motion. At first I was informed that Ms. May was going to come forward but had discussed with an attorney the serious consequences her mother would face if she violated her oath, and she changed her mind. I was then given by no less than four (4) persons, the details of the events that took place, as described in the motion. Everyone was willing to sign an affidavit and, in fact, I was in the process of arranging to meet with several of the other individuals when the misidentification of the juror came to light. I had advised all of these people of the serious consequences of making a false statement, and suggested that they speak to an attorney before becoming a witness. All indicated they were telling the truth about Terrina May and wanted to testify in an effort to force Ms. May to tell the truth. Part of the problem with the misidentification was mine. I have enclosed a copy of my chart in which you will see, that I failed to note Ms. Marcella Williams-Robinson as having been peremptoried out.
. . .
I have withdrawn the motion and have informed Mr. Wheeler, in no uncertain terms, that I would not be filing another motion to dismiss or any other motion. I intend to ask someone else to be appointed to represent Mr. Wheeler on appeal. It may well be that the person who is the mother of Terrina May was on the jury. If that person can be identified, I suspect that some other attorney may file a motion as, if the allegations are true, they certainly are serious and there needs to be some inquiry. I feel somewhat victimized and tremendously embarrassed over misidentifying the juror as well as indicating that she was the foreperson. For that I offer you my sincere apology.
(Letter from David S. Steingold to Mark C. Jones, June 21, 2001.)
At the hearing before this Court on July 12, 2001, Attorney Steingold stated on the record that before filing the motion he never confirmed whether the person identified by name in the motion actually was a juror, nor did he investigate the veracity of the representations on which the motion was based. In particular, he never attempted to contact Ms. May. Furthermore, Attorney Steingold obtained Butterfield's signature in Flint on the day of Defendant's sentencing but did not have his associate "notarize" it with false representations until he returned to his office in Detroit at some later time. Also after the affidavit was signed, Attorney Steingold added information to the first unsigned page of the affidavit of which the affiant had no knowledge.
Krystal Butterfield testified that she never appeared before a notary public — on the day she signed the affidavit or any other time in her life. In addition, Butterfield testified that she had never represented to Attorney Steingold that Ms. May was the daughter of Ms. Williams-Robinson, and the statement that "Ms. Terinna May [is] the daughter of Ms. Williams-Robinson" was not in the version of the affidavit that she signed. In short, Attorney Steingold submitted a bogus affidavit that he supplemented without the affiant's knowledge based on hearsay about hearsay that he failed to investigate in the least.
On July 16, 2001, Attorney Steingold filed "Defense Counsel's Supplemental Memorandum in Response to Order to Show Cause." In that Supplemental Memorandum, Attorney Steingold states that he was skeptical of the allegations that a juror engaged in improper conduct and reiterated that he sought to convey to everyone involved the importance and seriousness of the allegations. He acknowledged that he should have investigated the underlying facts and that his "failure to do so was negligent, but not willful," (Supp. Mem. at 4), and "certainly was not done with any malicious intent" (id. at 6). Attorney Steingold stated that, "[m]y greatest fault in this situation was in taking anyone's word for anything in this type of situation." (Supp. Mem. at 4.) He concluded by stating that, "[o]ften, timing makes it impossible to have a notary physically present when a document is signed," although he reassured the Court that he "certainly will never engage in such a practice in the future." (Supp. Mem. at 7.)
Discussion
The Court may require an attorney to "satisfy personally the excess costs, expenses, and attorneys' fees" reasonably incurred as a result of multiplying the proceedings in a case "unreasonably and vexatiously."See 28 U.S.C. § 1927. Moreover, it is well settled that courts have inherent authority to impose sanctions on an attorney for reckless or bad faith conduct during the course of litigation. See Chambers v. NASCO, Inc., 501 U.S. 32, 43-50 (1991); Roadway Express, Inc. v. Piper, 447 U.S. 752, 766-67 (1980); United States v. Wallace, 964 F.2d 1214, 1217-18 (D.C. Cir. 1992).
"Recklessness is defined as more than mere negligence but less than intent." In re Champion Enterprises, Inc., Securities Litigation, 144 F. Supp.2d 848, 858 (E.D.Mich. 2001) (citing Mansbach v. Prescott, Ball Turben, 598 F.2d 1017, 1024 n. 36 (6th Cir. 1979)); see Black's Law Dictionary (7th ed. 1999) (defining "recklessness" as involving "a greater degree of fault than negligence but a lesser degree of fault than intentional wrongdoing"); see also Smith v. Wade, 461 U.S. 30, 45 (1983) (describing recklessness as short of actual malicious intent). The Sixth Circuit has defined "recklessness" as "highly unreasonable conduct which is an extreme departure from the standards of ordinary care." Ohio Drill Tool Co. v. Johnson, 625 F.2d 738, 741 (6th Cir. 1980); see Black's Law Dictionary (7th ed. 1999) (defining "recklessness" as "[c]onduct whereby the actor does not desire harmful consequence but nonetheless foresees the possibility and consciously takes the risk").
This Court finds that Attorney Steingold's behavior rises to the level of recklessness. By his own admission, Attorney Steingold was negligent; he breached the duties he owes his client, the Government, and this Court. While his conduct may not have been with malicious intent, this Court finds that it also was more than merely negligent. For all his warnings to everyone involved, Attorney Steingold failed to appreciate the seriousness of his own actions in leveling charges of misconduct in a public document against a mis-identified juror, failing to undertake the most basic investigation of the underlying facts, supplementing an affidavit after it is signed to included information of which the affiant has no knowledge, and arranging a false notarization by his associate. Such conduct was highly unreasonable and an extreme departure from the standards of behavior expected of attorneys who practice before the federal courts.
Therefore, the Court concludes that the Motion for a New Trial was submitted recklessly and that Attorney Steingold should be sanctioned, accordingly, as follows. First, Attorney Steingold is required personally to pay the costs, expenses, and attorneys' fees incurred by the Government in responding to the motion, pursuant to 28 U.S.C. § 1927. Second, he is required personally to pay $2,500 to the Court as a sanction for reckless conduct.
Third, he is required to file a certification with this Court that he has submitted a copy of this Order to Chief Judge Lawrence P. Zatkoff of the United States District Court for the Eastern District of Michigan and the Attorney Grievance Commission of the State of Michigan.
Finally, the Court notes that in spite of the alleged quantity of evidence and gravity of the claims underlying this fiasco, Attorney Steingold has not sought to correct the motion with reliable and credible support but, from all outward appearances, has abandoned the effort altogether.
Conclusion
Accordingly, this Court being fully advised in the premises,
IT IS HEREBY ORDERED that Attorney David S. Steingold must personally pay the costs, expenses, and attorneys' fees incurred by the Government responding to Defendant's motion for a new trial. The Government must file an accounting of the costs, expenses, and attorneys' fees within 14 days of entry of this Order, and Attorney Steingold may file a response to that accounting within 14 days of the filing of that accounting.
IT IS FURTHER ORDERED that, within 30 days of the entry of this Order, Attorney Steingold must submit to the Clerk of the Court a certified check or money order made payable to the "Clerk of the Court" in the amount of $2,500.00 as a sanction for reckless conduct.
IT IS FURTHER ORDERED that, within 30 days of the entry of this Order, Attorney Steingold must file a certification with this Court that he has mailed a copy of this Order to Chief Judge Lawrence P. Zatkoff of the United States District Court for the Eastern District of Michigan and the Attorney Grievance Commission located at 243 W. Congress, Suite 256, Marquette Building, Detroit, Michigan 48226.
SO ORDERED.