United States District Court, D. Maryland
RONALD G. BAILEY-EL, Plaintiff,
THE HOUSING AUTHORITY OF BALTIMORE CITY, et al, Defendants.
RICHARD D. BENNETT, UNITED STATES DISTRICT JUDGE.
Ronald G. Bailey-El ("Plaintiff or
"Bailey-El"), pro se, in forma pauperis,
is a serial litigant in this Court. 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,  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"),  alleging retaliation and violations of
his First Amendment rights (Count One); violations of his
"fifth amendment due process rights" (Count Two);
and violations of additional constitutional rights, including
"procedural and substantive due process rights"
(Count Three). (First Am. Compl. at 1, ECF No. 16.)
prior Memorandum Opinion and Order, this Court construed all
of Plaintiffs 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 Autb. 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.
Baiky-El v. Housing Auth. of Baltimore City, 686
Fed.Appx. 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.
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.
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 Plaintiffs Discovery Failures (ECF No. 53, the
"Motion for Extension of Time"); and HABC's
Renewed Motion to Dismiss as Sanctions for Plaintiffs Failure
to Provide Complete Answers to Interrogatories and Respond to
Requests for Production and Certification of Good Faith
Efforts (ECF No. 55, the "Renewed Morion 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.
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
remanded, 686 Fed.Appx. 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 die 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.
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 the
Fourth 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.
months after the remand to this Court, on March 30, 2018,
Bailey-El filed a handwritten Second 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.)
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 tine
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.
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. (ECF Nos. 6, 40, 50.) On February 7, 2019
HABC moved for Extension of Time to File a Motion Related to
Plaintiffs 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.
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) ("Federal district courts
possess great discretion to sanction parties for failure to
obey discovery orders.") 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 ...