Sample v. Miles ( 2007 )


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  •                                                       United States Court of Appeals
                                                                   Fifth Circuit
                                                                 F I L E D
                  IN THE UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT                  February 9, 2007
    
                                                            Charles R. Fulbruge III
                                                                    Clerk
                               No. 05-50624
    
    
    BRANDON C. SAMPLE,
                                  Plaintiff - Appellee,
    
    versus
    
    R. D. MILES, Etc; ET AL,
    
                                  Defendants,
    
    SUSAN KILGORE; WINSTANLEY F. LUKE,
    
                                  Appellants.
    
                                 --------
                                 05-50727
                                 --------
    
    BRANDON C. SAMPLE,
    
                                         Plaintiff-Appellant,
    
    versus
    
    R. D. MILES, in his individual capacity;
    R. WILSON, in his individual capacity;
    A. FIGUEROA, C. BICKLE, FNU CHILDERS;
    BRANDON WARREN; J. FLORES; V. GRIEGER;
    R. SMITH; T. LANCE; RONALD G. THOMPSON;
    KATHLEEN HAWK SAWYER; HARLEY LAPPIN,
    
                                         Defendants-Appellees.
    
    
                           --------------------
              Appeals from the United States District Court
                    for the Western District of Texas
                           USDC No. 1:03-CV-311
                           --------------------
                                 No. 05-50727, et al.
                                          -2-
    
    Before JOLLY, HIGGINBOTHAM, and DENNIS, Circuit Judges.
    
    PER CURIAM:*
    
         In the district court below, federal prisoner Brandon Sample
    
    claimed, inter alia, that Bureau of Prisons officials retaliated
    
    against him for filing grievances during his stay at a Bastrop,
    
    Texas   facility.      The    district       court   granted   partial   summary
    
    judgment to defendant Lappin, denying Sample’s request for an
    
    injunction     requiring     Lappin    to    promulgate    policies   forbidding
    
    retaliation and train officers accordingly.               After a two-day bench
    
    trial, the court found for defendants on the remaining claims,
    
    denying Sample’s request for money damages. It then sanctioned two
    
    Assistant    United   States    Attorneys,       Winstanley    Luke   and   Susan
    
    Kilgore,    $500   jointly    and     severally,     payable   to   Sample,   for
    
    discovery abuse.      Sample appeals the judgment against him and the
    
    AUSAs appeal the sanctions.           We address each in turn.
    
                                             I
    
         Sample argues first that we should remand, under Federal Rule
    
    of Civil Procedure 52(a), for the district court to state more
    
    specifically its factual findings because the court, at the end of
    
    trial, orally found for defendants with little explanation and
    
    later, in its Findings of Fact and Conclusions of Law, ruled only
    
    that “[t]here is no credible evidence that any defendant considered
    
    plaintiff’s use of the administrative remedy program when changing
    
    
    
    
          *
            Pursuant to 5TH CIR. R. 47.5, the court has determined that this
    opinion should not be published and is not precedent except under the limited
    circumstances set forth in 5TH CIR. R. 47.5.4.
                                No. 05-50727, et al.
                                         -3-
    
    plaintiff’s job assignments.”1         Although the district court must
    
    state its factual findings sufficiently for us to review them, it
    
    need not state findings in great detail.2          Here, the court did more
    
    than describe the rudimentary facts out of context - it also
    
    recounted the relevant storyline.            More importantly, the trial
    
    essentially centered on the credibility of Sample’s witnesses
    
    versus that of prison officials, hence the court could do little
    
    but state which group was credible.             Sample complains that the
    
    court    did   not   discuss    evidence    contradicting     its   findings,
    
    including pre-trial statements by defendants that contradicted
    
    their trial testimony, but the court’s questioning at trial, its
    
    recognition that Sample’s case was “by no means frivolous,” and, in
    
    its Findings of Fact and Conclusions of Law where it sanctioned
    
    defendants’ attorneys, discussion of the conflicting evidence show
    
    that it clearly considered the contradictory evidence and chose to
    
    believe defendants’ trial testimony.          No more was required.3
    
    
    
    
         1
            The court concluded similarly that there was “no credible evidence”
    that Sample’s use of the grievance procedure affected the investigation of an
    altercation between Sample and another inmate or the resulting disciplinary
    proceeding. It also concluded that his transfer to another facility caused no
    harm and that Sample suffered no damages from any alleged acts by defendants.
    We construe Sample’s Rule 52(a) claim to apply to the former finding because
    he briefly mentions it, but he does not attack as too bare the damages
    finding.
         2
             See Chandler v. City of Dallas, 
    958 F.2d 85
    , 88-89 (5th Cir. 1992).
    
         3
            Sample also complains that the court never mentioned his allegation
    that defendants Lance and Smith confiscated his property and threw away some
    grievances. But the court heard evidence about these exact claims,
    particularly Lance’s and Smith’s testimony, and later ruled that Sample
    “suffered no damages as a result of any conduct by Defendants” and that Sample
    failed to establish “a causal link between his assertion of First Amendment
    rights and any of the conduct of which he complains.” Again, the court simply
    believed the defendants, and it did not have to detail every claim.
                                  No. 05-50727, et al.
                                           -4-
    
          Sample also attacks the court’s findings as clearly erroneous.
    
    We can reverse under that standard only if, after reviewing all the
    
    evidence, we are “left with the definite and firm conviction that
    
    a mistake has been committed.”4         Where, as here, “the findings are
    
    primarily based on oral testimony and the district judge has viewed
    
    the demeanor and judged the credibility of the witnesses,” the
    
    complaining party’s burden is particularly heavy.5                The district
    
    court, being entitled to believe defendants’ testimony, was not
    
    clearly erroneous in concluding that no retaliation occurred.6
    
    Sample quibbles with two possible minor factual inaccuracies in the
    
    court’s findings - dates and the exact number of different types of
    
    grievances filed by Sample - but they are, if erroneous, harmless.7
    
          Sample next asserts that the court should’ve granted his post-
    
    trial motion, under Rule 201(d), for judicial notice of several
    
    facts, particularly the existence of the contradictory evidence.
    
    Again, the court’s Rule 52(a) order makes clear that the court
    
    considered all the evidence, including the contradictory evidence.
    
    In any event, Sample cites no authority - and we cannot find any -
    
    for the proposition that a court should, after a trial, take notice
    
    
          4
              United States v. Gypsum Co., 
    33 U.S. 364
    , 395 (1948).
          5
            See Justiss Oil Co. V. Kerr-McGee Refining Corp., 
    75 F.3d 1057
    , 1066
    (5th Cir. 1996).
    
          6
            Sample complains, inter alia, that the court called what he calls an
    assault on him a “fight,” and that, contrary to the court’s findings, his
    transfer to another facility harmed him. Again, the court had discretion to
    believe defendants’ testimony to the contrary. He also complains about the
    court’s alleged mischaracterization of the precise nature of his transfer, but
    Sample mischaracterizes the court’s findings, which reflect clear
    understanding that he was transferred for safety reasons.
          7
              See FED. R. CIV. P. 61.
                                 No. 05-50727, et al.
                                          -5-
    
    of facts in the record and discussed at trial.             The court did not
    
    abuse its discretion.8
    
         Sample asserts that the district court erred by concluding
    
    that, as a matter of law, he had the burden to prove that but for
    
    the alleged retaliatory motive, the discriminatory acts would not
    
    have occurred.       As he properly concedes, this issue is foreclosed
    
    by precedent,9 and he raises it only to preserve it.                Sample also
    
    asserts that the district court misstated its jurisdiction as
    
    arising under 28 U.S.C. § 1346(b) when it arose under 28 U.S.C. §
    
    1331.       He is correct, but a miscitation to a correct legal
    
    principle is no basis for reversal.
    
         Sample served Rule 36 requests for admissions on defendants
    
    Miles and Wilson after filing the complaint but before serving
    
    process on those defendants; Miles and Wilson never answered the
    
    requests.      The district court excluded those ostensible admissions
    
    at trial, concluding that Miles and Wilson were not yet “parties”
    
    under Rule 36 when the requests were served.              Samples urges this
    
    was error.      To the contrary, under Rule 36 “parties” do not exist
    
    until they are served.         Indeed, it would be unfathomable to allow
    
    discovery on people not yet served, people who have no notice of
    
    any suit or knowledge of any controversy.10           Sample cites Sixth and
    
    Seventh Circuit cases allegedly to the contrary, but those cases
    
    
    
         8
              See Taylor v. Charter Med. Corp., 
    162 F.3d 827
    , 829 (5th Cir. 1998).
    
         9
              See Woods v. Smith, 
    60 F.3d 1161
    , 1166 (5th Cir. 1995).
         10
            See Henderson v. United States, 
    517 U.S. 654
    , 671-72 (1996)
    (describing nature of service of process).
                              No. 05-50727, et al.
                                       -6-
    
    are easily distinguishable and, in any event, not controlling.11
    
    Although year 2000 amendments to Rule 26 exempt entities in certain
    
    cases, like pro se prisoner cases, from the required initial
    
    disclosures, the initial discovery conference requirement, and the
    
    moratorium    on   discovery    until   after    that   conference,    those
    
    amendments allow discovery on entities immediately after they are
    
    served, not before.      Hence the district court ruled correctly.
    
         Sample argues next that the district court erred in holding
    
    his claims against defendant Lappin for injunctive relief barred by
    
    sovereign immunity, citing the APA’s waiver of sovereign immunity
    
    for claims for injunctive relief, 5 U.S.C. § 702.              Sample never
    
    
    
         11
            In Clay v. United States, 
    199 F.3d 876
    , 880 (6th Cir. 1999), the
    Sixth Circuit concluded that, under 26 U.S.C. § 7609, petitioners-taxpayers
    had only twenty-days after the IRS mailed summons to a third-party bank to
    challenge the summons. In rejecting petitioners’ argument that Rule 6(e)
    extended this period by three-days, the court noted that 26 U.S.C. § 7609 set
    the period at twenty-days “[n]otwithstanding any other rule of law.” The
    court held, alternatively, that Rule 6(e) provides additional time only to a
    “party,” and “[a] person becomes a party only by beginning a lawsuit, Fed. R.
    Civ. P. 3, or by being joined as a party after the suit has been instituted.
    A noticee of a summons under 26 U.S.C. § 7609 is not a ‘party’ unless and
    until a suit is commenced. Therefore...Rule 6(e) has no application to the
    time period before the filing of a petition to quash because the taxpayer has
    not yet become a party.” It’s true, of course, that an entity becomes a party
    by beginning a lawsuit - no service on it is required - and that was the
    court’s point, highlighted by its statement that petitioners weren’t parties
    until they commenced suit. (They couldn’t have been defendants, hence “is
    commenced” means “commenced by petitioners.”) Its statement that entities are
    “parties” after being “joined” cannot fairly be read to mean defendants or
    third-parties become “parties” under the Rules before being served - a
    conclusion utterly irrelevant to the case that would have been sheer dicta.
          In Howell By Goerdt v. Tribune Entertainment Co., 
    106 F.3d 215
    , 217 (7th
    Cir. 1997), the Seventh Circuit held simply that an entity becomes a defendant
    for purposes of subject-matter jurisdiction analysis when the plaintiff names
    it in a complaint, regardless when or if the defendant is served, as long as
    the defendant hasn’t been dismissed. The court noted that the district court
    below never dismissed the unserved defendant, thus requiring analysis on
    appeal of that defendant’s citizenship for diversity purposes. This sensible
    holding does not bear on when an entity becomes a “party” for discovery, or
    under the Rules generally; the court, in using the word “party” in stating
    that “a party becomes a defendant not when he is served but when the complaint
    naming him is filed,” meant “entity.” Otherwise, of course, someone is a
    “party” before he’s even a “defendant” - before he’s named in complaint. We
    can’t all be parties all the time.
                                No. 05-50727, et al.
                                         -7-
    
    cited the APA in his amended complaint; moreover, we have rejected
    
    similar arguments because, like here, there is no final agency
    
    action, as the APA requires.12
    
         Finally, Sample argues that the court abused its discretion in
    
    denying his motion for contempt, and his motion for costs, arising
    
    from his efforts to serve one defendant.            The record makes clear
    
    that no impropriety attached to this incident, and that defendants’
    
    counsel complied with the court’s order when he realized his
    
    mistake, justifying the court’s exercise of its wide discretion to
    
    deny both motions.13
    
         Consequently, the judgment for defendants is AFFIRMED.
    
                                           II
    
         A district court has discretion, under both Federal Rule of
    
    Civil Procedure 37 and its inherent powers, to sanction attorneys
    
    for discovery abuse.14 Personal sanctions like those here are meant
    
    to punish people personally culpable.15 We review sanctions imposed
    
    
    
    
         12
            See Armendariz-Mata v. U.S. Dep’t of Justice, DEA, 
    82 F.3d 679
    , 682
    (5th Cir. 1996) (rejecting contention that alleged seizure of property was
    final agency action).
         13
              See Whitfield v. Pennington, 
    832 F.2d 909
    , 914 (5th Cir. 1987).
         14
             See, e.g., Coane v. Ferrara Pan Candy Co., 
    898 F.2d 1030
    , 1033 n.2
    (5th Cir. 1990); Toon v. Wackenhut Corrections Corp., 
    250 F.3d 950
    , 952 (5th
    Cir. 2001). Sanctions under Rule 37 are limited to specific discovery
    violations, serving foremost to penalize misconduct, especially when levied
    against an attorney personally. See, e.g., Coane v. Ferrara Pan Candy Co.,
    
    898 F.2d 1030
    , 1033 n.2 (5th Cir. 1990). Sanctions under a court’s inherent
    power to punish abusive litigation practices are permissible but should be
    used as a last resort, if sanctions under the Federal Rules don’t fit and
    there is “bad faith.” See Toon, 250 F.3d at 952.
          15
             See supra note 14; B.F. Goodrich Tire Co. v. Lyster, 
    328 F.2d 411
    ,
    415-16 (5th Cir. 1964) (regarding Rule 37, “In the final analysis, a court has
    a responsibility to do justice between man and man....”).
                              No. 05-50727, et al.
                                       -8-
    
    under either authority for abuse of discretion.16 We have appellate
    
    jurisdiction to review the order imposing sanctions here.17
    
         The district court abused in discretion in sanctioning AUSA
    
    Luke because the record shows that Luke had no involvement in any
    
    discovery abuse - or any discovery.       Luke had no involvement in the
    
    case after August 3, 2004, his last paper filing being July 15, due
    
    to a serious injury requiring surgery and therapy.              The only two
    
    ostensible acts of discovery before August 3 were his innocuous
    
    motion to stay discovery, which the court granted, and the court’s
    
    order that Luke provide Sample with certain defendants’ addresses
    
    so Sample could serve them, an order which the record shows
    
    resulted from     no   misconduct   and   about   which   the   court   never
    
    professed concern.     Although Luke didn’t officially withdraw until
    
    September 23, when new AUSA Kilgore filed her notice of appearance
    
    and a notice of withdrawal for Luke, and some abuse took place
    
    between August 3 and September 23, Luke’s delay in officially
    
    
    
         16
            See Tollett v. City of Kemah, 
    285 F.3d 357
    , 363 (5th Cir. 2002); see
    also, e.g., Smith Intern. Inc. v. Texas Commerce Bank, 
    844 F.2d 1194
    . 1199 n.3
    (5th Cir. 1998) (explaining that “abuse of discretion” isn’t pejorative and
    “sounds worse than it really is”).
         17
            We have general appellate jurisdiction under 28 U.S.C. § 1291.
    Moreover, Luke’s and Kilgore’s appeals were timely - their April 4 notice of
    appeal was within the sixty-day window applicable where “the United States or
    its officer or agency is a party” under Federal Rule of Appellate Procedure
    4(a)(1)(B). Their May 6 notices of appeal from the district court’s April 7
    ruling, in which the court must have construed appellants’ post-trial motion
    as a motion under Rule 60(b), do not themselves give us appellate jurisdiction
    and do not affect the timeliness of the appeal, see Browder v. Ill. Direction,
    Dep’t of Corrections, 
    434 U.S. 257
    , 263 n.7 (1978); they might function as
    “amendments” to the appeal, limiting the scope of issues to the April 7 order,
    see, e.g., Sanders v. Clemco, 
    862 F.2d 161
    , 164 n.3 (8th Cir. 1988), but
    that’s irrelevant here because the April 7 ruling encompasses the entire issue
    on appeal. Alternatively, Luke and Kilgore filed second notices of appeal
    from the February 24 judgment on May 9, within fourteen days of Sample’s
    appeal from that same judgment on April 28, providing appellate jurisdiction
    under Federal Rule of Appellate Procedure 4(a)(3).
                              No. 05-50727, et al.
                                       -9-
    
    withdrawing is understandable as an administrative matter, and Luke
    
    cannot be held personally responsible for acts to which he had no
    
    connection or exercised no oversight.             Although an attorney of
    
    record who does little day-to-day but has supervisory authority may
    
    be sanctioned, Luke had no involvement at all and cannot be held
    
    strictly     liable   based   only   his   attorney   of   record   status.18
    
    Accordingly, the sanctions order against Luke is REVERSED.
    
           The district court did not abuse its discretion in sanctioning
    
    AUSA    Kilgore.      Although    the   central   discovery      violation     -
    
    defendants’ attorney, not defendants, signing the interrogatories,
    
    leading to inconsistent statements at a possibly unnecessary trial
    
    - was committed by Bureau of Prisons attorney Martin Sweaney just
    
    before Kilgore came on the scene, Kilgore was heavily involved
    
    during trial preparation and trial itself and was, therefore,
    
    responsible     for   preparing   witnesses    and    ensuring    that   their
    
    testimony would cohere with their earlier statements.19                  Unlike
    
    Luke, then, Kilgore cannot claim complete disconnection from the
    
    case.20     But we do think it an abuse of discretion that the court
    
           18
            Sample argues that Luke was an “advisory attorney” and participated
    ever-so-slightly in the case after August 3, but the record, including
    statements by both Luke and the U.S. Attorney’s Office in his behalf, belies
    that contention.
           19
            Moreover, it appears that Kilgore responded to Sample’s motion to
    compel the answers (which had just been tendered), hence she worked with the
    answers, and she was attorney of record when Sample complained about, and the
    court warned counsel about, defendants’ failure to sign their answers.
           20
            Although sanctions under the court’s inherent power require a finding
    of “bad faith,” sanctions under Rule 37 do not. See infra note 14. Under
    Rule 37(d), a court can sanction for failure to answer interrogatories. That
    is essentially what happened here - although answers were technically
    tendered, the answers were not signed by defendants and were at times flatly
    inconsistent with trial testimony, making them mostly worthless. Although
    Kilgore didn’t tender them, she was responsible for ensuring their propriety -
    or correcting them before a trial at which she examined witnesses on topics
                              No. 05-50727, et al.
                                      -10-
    
    directed the money be paid to Sample; although Sample suffered some
    
    disadvantage - albeit not much, it seems, given his penchant,
    
    facility,   and   time   for   litigation   -   the   purposes   behind   the
    
    sanctions would be better served if the money were to go to the
    
    court itself. Hence we MODIFY the order,21 directing Kilgore to pay
    
    $500 to the clerk of the United States District Court for the
    
    Western District of Texas.
    
    
    
    
    directly relating to the answers. We do not hold that she had “bad faith,”
    only that she should’ve noticed a problem.
          Sample makes a throwaway request that we order Kilgore to show cause why
    we shouldn’t sanction her for misleading this court on appeal. Kilgore has
    been completely forthright on appeal, so we reject the request.
         21
            See Richmark Corp. v. Timber Falling Consultants, 
    959 F.2d 1468
    , 1482
    (9th Cir. 1992) (redirecting contempt payment from plaintiffs to court); New
    York State Nat. Org. For Women v. Terry, 
    886 F.2d 1339
    , 1354 (2d Cir. 1989)
    (same).