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Judge threatens sanctions in DOC suit; attorneys claim honest mistakes

December 19, 2018

Two Indianapolis attorneys accused of filing false declarations on behalf of their state clients in an inmate’s excessive force lawsuit are facing federal court sanctions for the alleged misconduct, though the attorneys claim the issues giving rise to the court’s concerns were the result of honest mistakes.

Indiana Southern District Chief Judge Jane Magnus-Stinson and Magistrate Judge Doris L. Pryor held a show cause hearing Monday involving Amanda Fiorini, a deputy attorney general in the Indiana Attorney General’s Office, and Jeb Crandall of Bleeke Dillon Crandall, P.C. Also facing the possibility of sanctions are Frank Littlejohn, deputy warden of operations at the Wabash Valley Correctional Facility, and Pamela Hagemeier, a Department of Correction nurse. Littlejohn and Hagemeier are named as defendants in an Eighth Amendment excessive force lawsuit filed by inmate Philip Littler, and they are represented by Fiorini and Crandall, respectively.

Littler, who also names several other DOC-related defendants, filed his suit after an incident on Dec. 27, 2015, when he says correctional officers used excessive force to remove him from a shower and make him comply with a strip search. Specifically, Littler alleges he was unconstitutionally sprayed with a chemical agent, shot with a pepperball gun and forcibly removed as part of a cell extraction before being taken to Hagemeier and receiving inadequate care.  

All but one of the defendants were denied summary judgment in September, and at the same time, Magnus-Stinson issued show cause orders against Fiorni, Littlejohn, Crandall and Hagemeier, ordering them to explain why they should not be sanctioned for misleading the court. At issue are court filings submitted on behalf of the nurse and deputy warden in which Hagemeier claimed Littler did not tell her about the alleged excessive force and Littlejohn claimed to have had no involvement in the cell extraction.

Those statements were called into question during discovery, when an email exchange involving Littlejohn and a video of Littler’s interaction with Hagemeier came to light. In the email, Littlejohn asks a DOC captain if the pepperball gun has a minimum distance. He then writes, “I’m in the giving mood so instead of the team lets shoot him,” with “team” referring to a cell extraction team.

Further, a video of Littler’s interaction with Hagemeier immediately after the cell extraction reveals that Littler told the nurse, “I just want to tell you for the record, they shot me in the face three times, (and) punched me in the head several times. I didn’t resist.”

“The court hopes that this is an isolated incident of conduct and litigation gone awry, but is gravely concerned that it is not,” Magnus-Stinson wrote in September.

But Crandall, Fiorini and Littlejohn insisted during Monday’s show cause hearing that they made honest mistakes and never intentionally misled the court. In Crandall’s case, he told the court he was unaware that the video of Littler and Hagemeier’s interaction existed because the disk containing the video was not placed in the correct file.

The issue, Crandall said, is that his office has four files related to Littler, and the video was placed in the file for a different Littler case. What’s more, Crandall said he was unaware Hagemeier was featured on the video, so it was not on his radar to ensure he viewed it before filing her sworn declaration.

“As counsel of record for … Nurse Hagemeier, had I known what was on the video, I would NOT have submitted any evidence contradicting the fact that on the video Plaintiff expressed that he had been ‘shot in the face’ and ‘punched … several times,’” Crandall wrote in his October response to the show cause order, echoing assertions he made on the stand Monday.

Gavin Rose, an attorney appointed to represent Littler, noted the plaintiff referenced the video in court filings. When Rose asked Crandall why he did not research the video further upon reading that, Crandall said the filing was a 55-page document, and he was focused more on the care aspect of Hagemeier’s interaction with Littler than the conduct he said caused his injury.

Hagemeier was unable to attend Monday’s hearing and instead is scheduled for a show cause hearing in January. In her submitted response to the show cause order, the nurse maintains that at the time she submitted her declaration, she did not remember Littler telling her about the alleged excessive force. Further, Hagemeier submitted an affidavit stating that even after viewing the video, she still did not remember Littler providing her with that information.

In Fiorini’s case, the state attorney claimed she was unaware of the email exchange involving Littlejohn at the time his sworn declaration was submitted in February. And after the email came to light in July, Fiorini said she did not amend Littlejohn’s declaration in a subsequent reply brief because she “did not recognize or appreciate the danger that the e-mail, when compared to the declaration, could be seen as an inconsistent statement until the Court issued its Show Cause Order… .”

Littlejohn likewise said he still does not believe his statement — which claimed he was not involved in and did not order the cell extraction — was false. That’s because he said his email was a suggestion to use the pepperball gun, not an order, and he does not consider the use of a pepperball gun to be part of a “cell extraction.” An extraction, he said, is the use of physical force to remove an inmate, which was ultimately done with Littler after he was shot with the pepperball gun.

Fiorini is also facing sanctions for telling Pryor that a “range video” of the use of force against Littler was not available. Littler referenced the video in court filings, but Fiorini said she was mistakenly told by a DOC litigation liaison that the video was not available.

Magnus-Stinson had tough questions for the two attorneys and Littlejohn on Monday, asking Crandall if his comments about Littler’s four cases and 55-page filing were meant to imply the litigant was a burden. She also claimed Fiorini was “wordsmithing” in her attempts to explain why she did not believe Littlejohn’s email contradicted his statement. Both attorneys denied any wrongdoing and claimed their mistakes have caused them stress and anxiety in their professional and personal lives.

With regard to Littlejohn’s email, the chief judge noted that the person he was emailing, Captain Amanda Pirtle, responded to his suggestion to “shoot” Littler by saying, “I love that. lol.” Asked if that was an appropriate response, Littlejohn said the use of the phrase “lol” was inappropriate.

Carol Dillion of Bleeke Dillion Crandall, representing Crandall, urged the court not to impose sanctions, citing to the fact that their firm has instituted a new policy to avoid the misfiling of electronic exhibits. But Jonathan Paul Nagy, Fiorini’s supervisor in the AG’s recently created DOC Section, admitted that sanctions were warranted in Fiorini’s case, but not Littlejohn’s. However, he urged the court to stay any sanctions to trial.

But Magnus-Stinson, echoing an argument advanced by Rose, noted that had Littler been less persistent in seeking discovery, the email and videos at issue would likely not have come to light and the defendants would have been awarded summary judgment. Such a result would prejudice the administration of justice, she said, also noting that if any genuine issues of fact exist, summary judgment motions should not be filed.

“We expect your filings to be the truth, the whole truth and nothing but the truth,” Magnus-Stinson said at the conclusion of the nearly four-hour hearing. “Not the shading of facts to support your case.”

The chief judge did not impose sanctions on Monday, choosing instead to wait for Hagemeier’s hearing on Jan. 8. The case is Philip Littler v. Christopher Martinez, et al., 2:16-cv-00472.

Littler, 31, was sentenced to 45 years in prison in 2008 for his conviction of murder in St. Joseph County. He remains housed at Wabash Valley, according to DOC records.

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