Bailey-El v. Hous. Auth. of Balt. City
| Decision Date | 02 July 2019 |
| Docket Number | Civil Action No. RDB-15-2063 |
| Parties | RONALD G. BAILEY-EL, Plaintiff, v. THE HOUSING AUTHORITY OF BALTIMORE CITY, et al., Defendants. |
| Court | U.S. District Court — District of Maryland |
Plaintiff Ronald G. Bailey-El ("Plaintiff" or "Bailey-El"), pro se, in forma pauperis, is a serial litigant in this Court.1 In this action—one of many which he has filed in this court—he has sued Defendants Housing Authority of Baltimore City ("HABC" or the "Housing Authority"); Ms. Green,2 Regional Director of the HABC; Kimberly Graham, former HABC Director of Human Resources; Carla Walton, current HABC Director of Human Resources; Odyssey Johnson, HABC Manager; AFSCME Local 647; and Anthony Coates, President of AFSCME Local 647 ("Local 647"),3 alleging retaliation and violations of his First Amendment rights (Count One); violations of his "fifth amendment due process rights" (Count Two); andviolations of additional constitutional rights, including "procedural and substantive due process rights" (Count Three). (First Am. Compl. at 1, ECF No. 16.)
In a prior Memorandum Opinion and Order, this Court construed all of Plaintiff's claims as arising under 42 U.S.C. § 1983 and dismissed them as untimely and for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). See Bailey-El v. Housing Auth. of Baltimore City, 185 F. Supp. 3d 661 (May 9, 2016). The United States Court of Appeals for the Fourth Circuit affirmed in part, vacated in part, and remanded. Bailey-El v. Housing Auth. of Baltimore City, 686 F. App'x 228 (4th Cir. 2017). In its Opinion, the Fourth Circuit affirmed this Court's dismissal of Bailey-El's First Amendment claim, but found that he could pursue his procedural due process claim on a narrow theory of recovery. Id.
On remand, this Court afforded Bailey-El a third opportunity to amend his Complaint and further develop his procedural due process claim. Subsequently, HABC moved to dismiss the case as a sanction for Bailey-El's complete failure to engage in discovery. (ECF No. 45.) Noting Bailey-El's pro se status, this Court denied the Motion and afforded him an additional opportunity to engage in orderly discovery proceedings. (ECF No. 49.) He has failed to do so.
Now pending before this Court are three motions: Bailey-El's Motion for Appointment of Counsel (ECF No. 50), which is the third of its kind (See ECF Nos. 6, 40); HABC's Motion Requesting an Extension of Time to File a Motion Related to Plaintiff's Discovery Failures (ECF No. 53, the "Motion for Extension of Time"); and HABC's Renewed Motion to Dismiss as Sanctions for Plaintiff's Failure to Provide Complete Answers to Interrogatories and Respond to Requests for Production and Certification of Good Faith Efforts (ECF No. 55,the "Renewed Motion to Dismiss"). The parties' submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2018). For the reasons stated herein, Bailey-El's Motion for Appointment of Counsel (ECF No. 50) is once again DENIED; HABC's Motion for Extension of Time (ECF No. 53) is GRANTED; and HABC's Renewed Motion to Dismiss (ECF No. 55) is GRANTED. Bailey-El's Second Amended Complaint (ECF No. 38), which is the operative complaint, is DISMISSED WITH PREJUDICE.
The facts of this case have been discussed previously in an opinion of this Court and in an opinion of the United States Court of Appeals for the Fourth Circuit. See Bailey-El v. Housing Auth. of Baltimore City, 185 F. Supp. 3d 661 (D. Md. 2016), aff'd in part, vacated in part, and , 686 F. App'x 228 (per curiam). Because Plaintiff is proceeding pro se, this Court affords his pleadings a liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). In his Original and First Amended Complaint, Bailey-El generally alleged that the Housing Authority unfairly terminated his employment as a maintenance worker in violation of the First Amendment and Due Process Clause of the Fourteenth Amendment. Bailey-El, 185 F. Supp. 3d at 668-69. He particularly complained of the Housing Authority's failure to conduct an arbitration hearing before terminating his employment in 2012. Id. at 668. On May 9, 2016, this Court dismissed Bailey-El's claims, holding that they were untimely under the applicable statute of limitations and that he had failed to state a claim for First and Fourteenth Amendments violations. Id. at 670-78.
On April 27, 2017, the United States Court of Appeals for the Fourth Circuit affirmed in part, vacated in part, and remanded. (Judgment of United States Court of Appeals for theFourth Circuit, ECF No. 31.) Specifically, the Fourth Circuit affirmed this Court's dismissal of Bailey-El's First Amendment claims but vacated this Court's dismissal of his procedural due process claim. (Id. at 4.) Although acknowledging that Bailey-El did not have a right to an arbitration hearing, see Jackson v. Long, 102 F.3d 722, 729 (4th Cir. 1996), the Fourth Circuit noted that Bailey-El's collective bargaining agreement may have provided him with a possessory interest in continued employment requiring post-termination process. (Id. at 5.) The Fourth Circuit instructed this Court to provide Bailey-El with an additional opportunity to amend his complaint to "clarify whether he had a property interest in continued employment under the collective bargaining agreement and, if so, to specify the process that he was given related to his termination." (Id.) On remand, this Court granted Bailey-El twenty-eight days to file an amendment to the Complaint. (ECF No. 33.) The deadline to file an amendment was subsequently extended. (ECF No. 36.) Despite the courtesies extended to Bailey-El by the Fourth Circuit and this Court, he has continued to fail to clarify his Complaint.
Eleven months after the remand to this Court, on March 30, 2018, Bailey-El filed a handwritten Second4 Amended Complaint, which purports to comply with the Fourth Circuit's instructions to clarify the nature of his property interest in continued employment under the collective bargaining agreement. (ECF No. 38.) Bailey-El appears to assert that his procedural due process rights were violated when Defendants "deliberately and intentionally denied the Plaintiff his arbitration hearing by claiming that they could not find [him]." (Id. at 8.) He alleges that he had a property interest in an arbitration hearing pursuant to Article 7,Section 3 and Article 26 of a Master Agreement between HABC and Local 647. (Id. at 6-7, 9.) Bailey-El does not explain why these provisions operate in his favor. Instead, he beseeches this Court to order the Defendant to "read all of Article 7 and the Master Agreement." (Id.) The Complaint also accuses the Defendants of orchestrating a "grand and hideous scheme to terminate as many employees" as possible. (Id. at 11.)
Soon after filing his amendment, Bailey-El moved for a jury trial (ECF No. 39) and, for a second time, moved for the appointment of civil counsel (ECF No. 40). Defendant the Housing Authority opposed the Motions and moved to dismiss the Complaint as a sanction for Bailey-El's failure to engage in discovery. (ECF Nos. 42, 43, 45.) On January 18, 2019, this Court issued a Memorandum Order (ECF No. 49) which denied all three pending Motions and required Bailey-El to comply with HABC's discovery requests by February 1, 2019 or face dismissal of his Complaint. HABC was granted leave to renew and supplement its Motion to Dismiss in the event that Bailey-El failed to fully engage in discovery.
Three motions are now pending. On January 29, 2019 Bailey-El once again filed a Motion for Appointment of Counsel—his third motion of this kind.5 (ECF Nos. 6, 40, 50.) On February 7, 2019 HABC moved for Extension of Time to File a Motion Related to Plaintiff's Discovery Failures, citing "serious concerns" about the completeness of answers to its interrogatories and responses to requests for production. (ECF No. 53.) Subsequently, on February 28, 2019, HABC renewed its earlier Motion to Dismiss as Sanctions. (ECF No. 55.)
HABC seeks dismissal as a sanction for Bailey-El's failure to cooperate in discovery matters pursuant to Federal Rule of Civil Procedure 37(a) and (d). Pursuant to Fed. R. Civ. P. 37(b)(2)(A)(v), this Court may dismiss an "action or proceeding in whole or in part" as a sanction for failing to obey an order to provide discovery. Similarly, Rule 37(d) permits this Court to order dismissal if "a party, after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its answers, objections, or written response." Fed. R. Civ. P. 37(d)(1)(A)(ii), (d)(3). In general, this Court is afforded broad discretion to impose sanctions under Rule 37. See Camper v. Home Quality Mgmt. Inc., 200 F.R.D. 516, 518 (D. Md. 2000) () Where dismissal is sought, the district court's "range of discretion is more narrow" as its "desire to enforce its discovery orders is confronted head-on by the party's rights to a trial by jury . . . ." James M. Wagstaffe, Federal Civil Procedure Before Trial § 38-V (2019) (quoting Mut. Fed. Sav. & Loan Ass'n v. Richards & Assocs., Inc., 872 F.2d 88, 92 (4th Cir. 1989)).
For the third time in this case, Bailey-El moves for the appointment of counsel. (ECF No. 50.) This time, he argues that he cannot "conduct discovery, take depositions, construct interrogatories, requests for production of documents, or summon experts" without legal assistance. (Id. at 2-3.) As this Court has repeatedly explained, a federal district court judge's power to appoint counsel under 28 U.S.C. § 1915(e)(1) is a discretionary one and may beconsidered where an indigent claimant presents exceptional circumstances. See Cook v. Bounds, 518 F.2d...
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