Jay Nottingham v. Warden Bill Clements Unit , 837 F.3d 438 ( 2016 )

Case: 15-10163 Document: 00513671617 Page: 1 Date Filed: 09/09/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 9, 2016
No. 15-10163
Lyle W. Cayce
Clerk
JAY ANTHONY NOTTINGHAM, also known as Jay Nottingham, also known
as Jeffrey Montgomery, also known as Jay Dillon,
Plaintiff–Appellant,
v.
WARDEN, Bill Clements Unit; UNNAMED ADMINISTRATIVE STAFF;
UNNAMED MEDICAL STAFF,
Defendants–Appellees.
Appeal from the United States District Court
for the Northern District of Texas
Before PRADO, OWEN, and HAYNES, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
Jay Nottingham, proceeding pro se, appeals the district court’s dismissal
of this suit pursuant to Federal Rule of Civil Procedure 41(b) for failure to
comply with court orders. Because we conclude that the district court did not
abuse its discretion, we affirm.
I
Nottingham filed a complaint in the district court, alleging constitutional
violations arising out of his incarceration in a Texas Department of Criminal
Justice prison. The day he filed the complaint, Nottingham also filed an
application to proceed in forma pauperis (IFP). Recognizing several defects
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and inconsistencies in the IFP application, MAGISTRATE JUDGE AVERITTE
issued an order directing Nottingham to provide corrected financial disclosures
by answering detailed questions in a questionnaire. Rather than comply with
this order, Nottingham paid the filing fee.
MAGISTRATE JUDGE AVERITTE then issued an order noting that in two
prior cases, Nottingham had engaged in “similar conduct” by applying for IFP
status and then paying the filing fee rather than complying with an order to
provide verifiable information in support of the IFP application. The court
expressed concern based on this pattern as to “whether [Nottingham’s] initial
request for pauper status was proper,” and specifically directed Nottingham to
comply with its previous order requiring him to file corrected and complete
financial information using the questionnaire provided, notwithstanding his
payment of the filing fee.
In response to this second order, Nottingham filed a “motion to
withdraw [the] request to proceed in forma pauperis,” in light of his payment
of the filing fee. Nottingham’s motion also sought the court’s withdrawal of its
“request” for compliance with its previous orders, asserting that he had “paid
all filing fees and [wa]s no longer required to file any financial statement.”
MAGISTRATE JUDGE AVERITTE granted Nottingham’s motion to withdraw
the original IFP application, acknowledging that the application “appear[ed]
to have been rendered moot” by Nottingham’s payment of the filing fee.
However, the court denied Nottingham’s motion for the withdrawal of the
requirement that he comply with its financial disclosure directives. The court
held that neither of the orders requiring Nottingham to complete the
questionnaire had been mooted by the payment of the filing fee and that the
same concerns that the court had regarding Nottingham’s original IFP
application remained. The court explained that litigants are required to
comply with court orders and may be sanctioned for failing to do so and directed
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Nottingham to comply with its two previous orders “instanter.” Additionally,
the title of the order stated, in all capital letters, that it was Nottingham’s “last
opportunity to comply with court order,” and the court explicitly warned
Nottingham in the body of the order that “a failure to comply may lead to the
imposition of sanctions including the assessment of a monetary sanction and,
ultimately, dismissal of this lawsuit.”
Steadfast in his desire to proceed without completing the questionnaire,
Nottingham filed instead a “response” to the court’s order expressing confusion
as to the financial disclosure obligation. Attached to the response was an
affidavit from Nottingham’s wife, Nancy Morrison Nottingham, explaining
that the Nottinghams’ financial circumstances had improved between the time
of the original IFP application and the paying of the filing fee. According to
the affidavit, medical problems had restricted Nancy’s ability to work in mid-
2014, but surgery had alleviated the issue to the point that the Nottinghams
were no longer in need of IFP assistance by the end of 2014.
In response, the district court dismissed the complaint without prejudice.
In dismissing the case pursuant to Federal Rule of Civil Procedure 41(b),
DISTRICT JUDGE ROBINSON noted that Nottingham “has made plain [that] he
will not comply” with the previous orders to complete the questionnaire and
that he was warned of the potential consequences for noncompliance.
The day after the dismissal, Nottingham filed a motion for
reconsideration. In the motion, Nottingham did not offer to cure his error by
filing a completed questionnaire. Instead, he argued that he had gone “far and
above” in his efforts to comply with the court’s order and “followed each and
every order that was issued,” asserting that MAGISTRATE JUDGE AVERITTE had
no basis for continuing to require Nottingham to comply with the financial
disclosure obligation after he paid the filing fee. The district court denied the
motion for reconsideration, and Nottingham timely appealed.
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II
Under Rule 41(b), a district court may dismiss an action sua sponte if the
plaintiff fails to comply with court orders. 1 We review such dismissals for
abuse of discretion. 2 Where, as here, “the dismissal is without prejudice but
the applicable statute of limitations probably bars future litigation,” our
examination is searching, and we review the dismissal as we would a dismissal
with prejudice. 3 Although “[l]esser sanctions such as fines or dismissal without
prejudice are usually appropriate before dismissing with prejudice, . . . a Rule
41(b) dismissal is appropriate where there is ‘a clear record of delay or
contumacious conduct by the plaintiff and when lesser sanctions would not
serve the best interests of justice.’” 4
Read liberally, Nottingham’s brief argues that MAGISTRATE JUDGE
AVERITTE lacked the authority to require him to complete the questionnaire
after he paid the filing fee, excusing his refusal to comply with the court’s
orders. MAGISTRATE JUDGE AVERITTE required Nottingham’s continued
compliance with the financial disclosures order to ensure that the “initial
request for pauper status was proper,” in light of Nottingham’s apparent
pattern of filing IFP applications and then paying the filing fee when
additional and verifiable detail was requested. Although we have never
addressed the propriety of a district court ordering financial disclosures after
1 See FED R. CIV. P. 41(b); McCullough v. Lynaugh, 835 F.3d 1126, 1126 (5th Cir. 1988)
(per curiam).
2 Coleman v. Sweetin, 745 F.3d 756, 766 (5th Cir. 2014) (per curiam).
3 Id. (quoting Boazman v. Econ. Lab., Inc., 537 F.2d 210, 213 (5th Cir. 1976)).
4 Bryson v. United States, 553 F.3d 402, 403 (5th Cir. 2008) (per curiam) (citations
omitted) (quoting Callip v. Harris Cty. Child Welfare Dep't, 757 F.2d 1513, 1521 (5th Cir.
1985)); see also Long v. Simmons, 77 F.3d 878, 880 (5th Cir. 1996) (noting that a district court
does not abuse its discretion by dismissing a case with prejudice if the plaintiff has been
contumacious and the court has “employed lesser sanctions before dismissing the action”).
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a plaintiff withdraws his or her IFP application in favor of paying the filing
fee, we conclude that the district court has that authority.
The statute governing IFP status specifies that “[n]otwithstanding any
filing fee, or any portion thereof, that may have been paid, the court shall
dismiss the case at any time if [it] determines that . . . the allegation of poverty
is untrue.” 5 Accordingly, inquiry into whether Nottingham’s allegations of
poverty were true was well within the district court’s discretion. Dismissal is
mandatory if the court determines “at any time,” 6 even after the plaintiff pays
the filing fee, 7 that the contents of an IFP application are false.
A district court retains the authority to conduct reasonable investigations into
the allegation of poverty even after the filing fee payment. Under the statute’s
plain language, Nottingham’s eventual payment did not disrupt the district
court’s ability to inquire into whether the initial IFP application contained
misrepresentations.
We reject Nottingham’s argument that his noncompliance can be
excused on the ground that the district court lacked the authority to require
him to complete the questionnaire after he paid the filing fee. The question
remains, however, whether the district court abused its discretion by imposing
the ultimate sanction for Nottingham’s refusal to comply with court orders.
The district court had reason to suspect that Nottingham’s IFP
application contained false information, as this is apparently the third time
that Nottingham has filed an IFP application, then withdrawn the application
5 28 U.S.C. § 1915(e)(2)(A).
6 28 U.S.C. § 1915(e)(2).
7 See Mathis v. New York Life Ins. Co., 133 F.3d 546, 547 (7th Cir. 1998) (per curiam)
(“The Prison Litigation Reform Act (PLRA) redesignated § 1915(d) to § 1915(e) and mandated
that a district court ‘shall dismiss the case’ if among other things ‘the allegation of poverty is
untrue.’”). We also find our decision in Castillo v. Blanco, 330 F. App’x 463, 466 (5th Cir.
2009) (per curiam) (unpublished) (noting mandatory dismissal requirement) persuasive.
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after being pressed for additional information. While Nottingham argues on
appeal that he has never previously filed for IFP status, the docket sheets in
the two previous cases cited by MAGISTRATE JUDGE AVERITTE reflect IFP
requests followed by payment of the filing fee, 8 so even if those docket sheets
reflect some clerical error or Nottingham filed for IFP relief in those cases only
by mistake, MAGISTRATE JUDGE AVERITTE had an objective basis for suspecting
that Nottingham may have made untrue allegations of poverty and was
permitted to inquire about the issue.
As noted above, dismissal was proper only if Nottingham’s
noncompliance was the result of “purposeful delay or contumaciousness
and . . . lesser sanctions would not serve the best interests of justice.” 9
Additionally, to dismiss with prejudice, we usually require the presence of an
“aggravating factor,” which includes “the extent to which the plaintiff, as
distinguished from his counsel, was personally responsible for the delay, the
degree of actual prejudice to the defendant, and whether the delay was the
result of intentional conduct.” 10
Nottingham’s conduct demonstrates contumaciousness. After the
district court twice made clear that it required Nottingham’s compliance with
its original order notwithstanding his payment of the filing fee, Nottingham
expressed confusion at the directive and noted that he “cannot find any
requirement to file any financial statement if he has not asked for any financial
8 Compare Order Setting Deadline for Submission of IFP Data Sheet, Nottingham v.
Richardson, No. 2:10-CV-60 (N.D. Tex. July 2, 2010), ECF No. 13 with Receipt for $350,
Nottingham v. Richardson, No. 2:10-CV-60 (N.D. Tex. July 12, 2010); compare Notice of
Deficiency, Nottingham v. Finsterwald, No. 2:10-CV-23 (N.D. Tex. Feb. 19, 2010), ECF No. 8
with Receipt of payment for Filing Fee, Nottingham v. Finsterwald, No. 2:10 CV-23 (N.D.
Tex. Mar. 9, 2010).
9 Bryson, 553 F.3d at 403 (quoting Callip, 757 F.2d at 1521).
10 Id. (quoting Rogers v. Kroger Co., 669 F.2d 317, 320 (5th Cir. 1982)).
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assistance.” But the requirement to provide financial information was clearly
set forth in two of MAGISTRATE JUDGE AVERITTE’S orders. A litigant may not
flout valid court orders simply because he is not independently certain of their
validity. 11
With respect to lesser sanctions, we have previously made clear that they
“include assessments of fines, costs, or damages against the plaintiff,
conditional dismissal, dismissal without prejudice, and explicit warnings.” 12
Here, MAGISTRATE JUDGE AVERITTE explicitly warned Nottingham that his
continued refusal to complete the questionnaire provided “may lead to the
imposition of sanctions including the assessment of a monetary sanction and,
ultimately, dismissal of this lawsuit.” Despite this explicit warning,
Nottingham refused to comply.
Finally, Nottingham is acting pro se and is personally responsible for his
failure to comply with the district court’s orders. Additionally, Nottingham’s
noncompliance was due to intentional conduct, as he acknowledged
understanding MAGISTRATE JUDGE AVERITTE’S order. In response to the order
that included in its caption “LAST OPPORTUNITY TO COMPLY WITH
COURT ORDER,” Nottingham stated that he “requests that he be able to
proceed without providing any additional financial disclosure, without the
threat of dismissal or sanctions.” Even after the district court dismissed the
suit, Nottingham’s motion for reconsideration did not provide the financial
information that he had been ordered to disclose. Instead, he again challenged
11See FED. R. CIV. P. 41(b) (authorizing dismissal as sanction for failing to comply
with court order); cf. McNeal v. Papasan, 842 F.2d 787, 792 (5th Cir. 1988) (focusing
contumaciousness inquiry in a dismissal for failure to prosecute on the “stubborn resistance
to authority” (internal quotation marks and citation omitted)).
12 Thrasher v. City of Amarillo, 709 F.3d 509, 514 (5th Cir. 2013) (alterations and
internal quotation marks omitted).
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the court’s authority to require financial disclosures once he had paid the filing
fee. Accordingly, “aggravating factors” are present.
The district court did not abuse its discretion in dismissing this action
pursuant to Rule 41(b).
* * *
For the reasons set forth herein, the judgment of the district court is
AFFIRMED.
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HAYNES, Circuit Judge, dissenting:
I respectfully dissent. I agree with the majority opinion that the better
view of the law is that the magistrate judge had the authority to investigate
the truthfulness of the original poverty allegations even after the pro se
plaintiff withdrew his IFP application. However, the Seventh Circuit’s
decision regarding a related question in Hrobowski v. Commonwealth Edison
Co., 203 F.3d 445 (7th Cir. 2000) demonstrates that this is far from an obvious
legal proposition to a group of judges, much less to a pro se litigant.
In Hrobowski, the district court initially granted a plaintiff’s application
to proceed IFP in his discrimination suit and appointed counsel to represent
the plaintiff pro bono. Id. at 446. Subsequently, the plaintiff hired and paid
for a new attorney when his appointed counsel sought and was granted leave
to withdraw (to which the plaintiff did not object). Id. Later in the course of
the litigation, the plaintiff filed a second application to proceed IFP and again
sought appointment of counsel. Id. at 447. The district court denied the
plaintiff’s second application and the case proceeded to trial. Id. On the second
day of trial, it came to light during cross examination of the plaintiff that his
second application for IFP status contained significant omissions. Id. In light
of this testimony and upon the defendant’s motion, the district court dismissed
the plaintiff’s case as a sanction pursuant to 28 U.S.C. § 1915(e)(2)(A). Id.
The Seventh Circuit reversed. Id. at 449. Concluding first that the
question presented—“whether [§ 1915(e)(2)(A)] forced the district court to
dismiss . . . [the plaintiff’s] case after the omissions in his in forma
pauperis applications came to light”—was a question of law, the court reviewed
the district court’s decision de novo. Id. at 448. The court went on to determine
that the denial of the plaintiff’s second IFP application operated “as a
revocation of the initial grant of [IFP] status,” and thus “his obligation to pay
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filing fees kicked in and he began to proceed (or at least should have been
ordered to proceed) like any other plaintiff.” Id. Over the subsequent 11
months, “he expended considerable money and effort . . . bringing his case to
trial,” in accordance with his non-IFP status. Id. The court concluded that the
district court’s dismissal of the case under the code provision entitled
“‘proceedings in forma pauperis’ after such a long stretch of [the plaintiff]
proceeding as a nonpauper d[id] not make sense.” Id. Thus, the court held
that the district court erred in using the mandatory dismissal language of
§ 1915(e)(2)(A) to dismiss the plaintiff’s suit. Id.
Hrobowski does not directly address the question raised by this appeal—
whether the district court has the discretion to develop evidence relevant to
§ 1915(e)(2)(A) when an IFP application is no longer pending. Rather, it
addressed a related question—whether a judge has the power to dismiss a case
under § 1915(e)(2)(A)’s mandatory dismissal provision when a plaintiff is no
longer proceeding IFP (and has not been for some time). Further, unlike the
district court in Hrobowski, the district court in this case dismissed
Nottingham’s appeal under Federal Rule of Civil Procedure 41(b)—not
§ 1915(e)(2)(A).
Nonetheless, Hrobowski’s holding could be read to call into question a
magistrate judge’s power to continue to investigate a plaintiff’s IFP status even
after an IFP application has been withdrawn. Given the uncertainty exhibited
by the arguable dissonance between the Seventh Circuit’s holding in
Hrobowski and the majority opinion in this case, it is understandable that
Nottingham, a pro se litigant, would not necessarily intuit that the magistrate
judge could continue to require the submission of financial disclosures even
after the withdrawal of his IFP application. Accordingly, I conclude that
Nottingham’s conduct did not evince the “purposeful delay or
contumaciousness” necessary for what is effectively a dismissal with prejudice.
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Long v. Simmons, 77 F.3d 878, 880 (5th Cir. 1996). A plaintiff should not be
punished to the point of losing his case for disputing a legal proposition which
is not obvious. Id.
Additionally, I disagree that Nottingham was clearly warned of the
possibility of immediate dismissal. As the majority opinion shows, the
magistrate judge stated only that “a failure to comply may lead to the
imposition of sanctions including the assessment of a monetary sanction and,
ultimately, dismissal of this lawsuit.” Maj. Op. at 3 (emphasis added). The
dismissal was not “ultimately”; it took place immediately.
For these reasons, I dissent. Now that we have made the law clear,
instead of affirming, I would give Nottingham another chance by remanding
the case with directions that the district court allow him one more opportunity
to respond to the magistrate judge’s order in question within a stated
(reasonable) time. If he then fails to comply, his case should be dismissed.
11