Dismukes v. Brandeis Univ.

PAUL DISMUKES, Plaintiff, v. BRANDEIS UNIVERSITY, Defendant.

Civil No. 19-11049-LTS

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

April 16, 2021

ORDER ON MOTION FOR SUMMARY JUDGMENT (DOC. NO. 68) AND OTHER PENDING MOTIONS (DOC. NOS. 74, 80)

SOROKIN, J.

In October 2016, a female Ph.D. student ("EO")¹ at Brandeis University alleged that Paul Dismukes, a male Ph.D. student at Brandeis, had harassed and physically assaulted her on her front porch when she left her home in Waltham, Massachusetts, early one morning. Her allegations resulted in a civil restraining order against Dismukes that was subsequently extended four times over several years by the Waltham District Court; criminal charges against Dismukes prosecuted by the Middlesex County District Attorney's Office; and an informal Title IX investigation by Brandeis culminating in protective measures limiting Dismukes's activities on campus but no formal discipline or other notation in his academic record. Proceeding pro se, Dismukes has sued Brandeis, advancing numerous causes of action. Pending now are Brandeis's motion for summary judgment and related motions by Dismukes.

I. THE RECORD

The Court first addresses the record of undisputed facts before it in connection with the summary judgment motion. This requires a brief recitation of salient events from the procedural history in this case and resolution of a request by Dismukes to defer ruling on Brandeis's motion.

In September 2019, the Court set a schedule to govern discovery and pretrial motion practice in this action. Doc. No. 39.² Dismukes disregarded his obligations under that Order, failing to make initial disclosures, serve discovery, or respond to Brandeis's discovery requests by the relevant deadlines. In a May 2020 Order allowing Brandeis's motion to compel Dismukes to provide disclosures and discovery responses, the Court observed that Dismukes had demonstrated "a decision to ignore his case for a substantial period of time and disregard the governing scheduling order of which he was well aware." Doc. No. 53 at 2. Shortly thereafter—and long after the deadline for written discovery requests had passed without Dismukes serving any requests—the Court provided additional time for Dismukes to engage in discovery (including the taking of depositions) to support his claims. Doc. No. 62.

Consistent with the extended deadlines, Brandeis moved for summary judgment on November 16, 2020, Doc. No. 68, and Dismukes opposed the motion, Doc. No. 74.³ In support of its motion, Brandeis filed a statement of undisputed facts, as required by the Local Rules. Doc. No. 69; see D. Mass. L.R. 56.1. Although Dismukes opposed the motion with his own memorandum and exhibits, Doc. Nos. 74, 75, he filed no response to Brandeis's statement offacts, nor did his overlength brief contain "a concise statement of the material facts of record as to which it is contended that there exists a genuine issue to be tried, with page references to affidavits, depositions and other documentation," D. Mass. L.R. 56.1. After briefing on the motion was completed with the filing of Brandeis's reply, Doc. No. 76, the Court ordered the parties to "file a unified statement of material undisputed facts" containing Brandeis's asserted facts and accompanying record citations, with each fact followed by Dismukes's response. Doc. No. 78. Such a submission is consistent with the Standing Order Regarding Briefing of Summary Judgment Motions for Judge Leo T. Sorokin's Session,⁴ which sets forth this session's practice of ensuring compliance with Local Rule 56.1 by requiring the parties to file one combined document pairing each of the moving party's asserted facts with the opposing party's response. It also afforded Dismukes a second opportunity to respond to Brandeis's statement of facts. Dismukes, however, declined to participate in this process. Doc. No. 81-1.

Instead, without conferral (another violation of the Local Rules, see D. Mass. L.R. 7.1(a)(2)), Dismukes filed a motion asking the Court to deny or defer ruling on Brandeis's motion for summary judgment, invoking Federal Rule of Civil Procedure 56(d). Doc. No. 80. According to Dismukes, he was unable to "present essential facts to justify his opposition" to summary judgment because Brandeis's discovery responses were inadequate, and because Brandeis's deposition of him featured "compound and leading questions that were not a search for the truth." Doc. No. 80-1. Thereafter, Brandeis re-filed its statement of facts, this timenoting after each fact that Dismukes had "declined to respond." Doc. No. 81 at 3-28. It also opposed Dismukes's motion pursuant to Rule 56(d). Doc. No. 82.

Local Rule 56.1 provides: "Material facts of record set forth in the statement required to be served by the moving party will be deemed for purposes of the motion to be admitted by opposing parties unless controverted by the statement required to be served by opposing parties." D. Mass. L.R. 56.1;⁵ see Fed. R. Civ. P. 56(e)(2) (permitting a court to "consider [a] fact undisputed for purposes of" summary judgment if a party "fails to properly address another party's assertion of fact"). Brandeis cited this rule in its reply brief and asked the Court to impose the consequence described therein due to Dismukes's failure to comply with the rule. Doc. No. 76 at 1 n.1. It reiterated this request after Dismukes's refusal to comply with the Court's order requiring a combined statement of facts. Doc. No. 81 at 2.

After careful consideration, the Court ALLOWS Brandeis's request and deems each of the assertions of fact contained within Brandeis's statement of facts (Doc. No. 81) ADMITTED for purposes of the pending summary judgment motion. Though Dismukes is not a lawyer, he is a well-educated pro se litigant. See Doc. No. 56 at 2. He, like other pro se litigants, is bound to comply with all applicable Federal and Local Rules. Fed. Deposit Ins. Corp. v. Anchor Props., 13 F.3d 27, 31 (1st Cir. 1994). His failure to answer Brandeis's factual statement was not an accidental oversight or omission by a litigant unaware of the relevant requirements. Rather, he refused to respond even after Brandeis cited the Local Rule requiring a response and specifying the consequences for not providing one, after the Court provided him a second chance to comply with that requirement and its own Standing Order, and after Brandeis endeavored to coordinate acombined submission with him in communications reiterating the terms of the Court's order. In these circumstances, treating Brandeis's statement of facts as conceded by Dismukes is warranted. Fed. R. Civ. P. 56(e)(1)-(2); D. Mass. L.R. 1.3, 56.1.

Federal Rule of Civil Procedure 56(d) does not shelter Dismukes from this consequence. Rule 56(d) provides: "If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order." Dismukes's attempt to avoid summary judgment via Rule 56(d) fails for several reasons. First, his motion is not accompanied by any "affidavit or declaration," as the rule requires. See Gordon v. Starwood Hotels & Resorts Worldwide, Inc., 238 F. Supp. 3d 229, 239 (D. Mass. 2017) (explaining unsworn brief is not "penalty of perjury statement" necessary to support a Rule 56(d) request).

Second, the record amply demonstrates that Dismukes has neither acted diligently nor supported his request with a showing of good cause for his failure to "marshal[] the necessary facts earlier in the proceedings." Rivera-Torres v. Rey-Hernandez, 502 F.3d 7, 10 (1st Cir. 2007). He missed deadlines without explanation and then required Court orders before making necessary disclosures and responding to Brandeis's discovery requests. He conducted no discovery of his own during the time originally provided by the Court. He filed no motion to compel or otherwise challenge Brandeis's responses to the discovery requests he finally served after the Court provided him additional time, despite the Court having set a deadline for raising such issues. Doc. No. 62. He conducted no depositions of any witnesses he believed had evidence to support his claims. The Rule 56(d) motion neither acknowledges nor endeavors to establish good cause excusing the lack of diligence that has characterized Dismukes's approachto this case from its inception. Put simply, Dismukes had a full and fair opportunity to engage in discovery and collect evidence supporting his claims. He elected not to do so at his own peril. See Rivera-Torres, 502 F.3d at 10 (emphasizing Rule 56(d) "is not designed to give relief to those who sleep upon their rights").

Third, Dismukes has not identified specific facts he would develop if given additional time to conduct discovery, let alone articulated a plausible basis for finding such facts exist, can be retrieved in a reasonable time, and would defeat Brandeis's summary judgment motion. Id. His conclusory and untimely challenges to Brandeis's discovery responses and its examination of him during his own deposition do not satisfy the burden borne by a litigant seeking to avail himself of "the prophylaxis" of Rule 56(d). Id.

Accordingly, Dismukes's motion to deny or defer ruling on Brandeis's summary judgment motion (Doc. No. 80) is DENIED.

II. THE MERITS

Turning to the substance of Brandeis's motion, the Court applies the familiar summary judgment standard to the undisputed material facts identified by Brandeis and unrebutted by Dismukes. See Fed. R. Civ. P. 56(a); Quinones v. Houser Buick, 436 F.3d 284, 289 (1st Cir. 2006) (discussing standard and noting burden on non-moving party to set forth specific facts showing that a genuine issue of material fact exists). In reviewing this record, the Court examines the facts in the light most favorable to Dismukes,...