Hastey v. City of Plainview,TX ( 1995 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-10071
Summary Calendar
_____________________
Michael Lee Hastey,
Plaintiff/Appellant,
versus
City of Plainview; Chief of Police, Plainview
Police Department; Officer Joe Champion; Officer
Derrick McPherson; and Officer Forrest Chapman,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
For the Northern District of Texas
(5:93 CV 336 C)
_________________________________________________________________
(June 23, 1995)
Before JOHNSON, JOLLY and DAVIS, Circuit Judges.*
JOHNSON, Circuit Judge:
Michael Lee Hastey brought suit, pro se and in forma
pauperis, against the City of Plainview and against a host of
city officials. The district court dismissed the action pursuant
to Fed. R. Civ. P. 16(f) because Hastey failed to comply with the
court's scheduling order. Hastey appeals and we VACATE and
REMAND.
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
I. FACTS AND PROCEDURAL HISTORY
In his complaint, Hastey contended that some defendants
conspired to convict him of theft. Hastey also alleged that one
defendant used excessive force against him in connection with a
DUI arrest and that other defendants conspired to cover up the
use of force. Finally, Hastey contends that the City of
Plainview should have had a policy to screen overly aggressive
police officers and to review the actions of those officers.
The defendants implicated in the alleged conspiracy to
convict Hastey of theft, which included a judge and three
prosecuting attorneys, were granted summary judgment by the
district court on July 7, 1994. Hastey's claims against those
defendants were severed from the instant case.
The remaining defendants, who are the appellees herein, also
filed a motion for summary judgment on qualified immunity
grounds. That motion, however, was denied. Additionally, the
defendants moved for sanctions against Hastey for failing to
attend his scheduled deposition and the defendants requested that
the court compel Hastey to attend a later-scheduled deposition.
These motions were denied as well.
The district court, on July 1, 1994, issued a pretrial
notice and order instructing the parties to submit their proposed
pretrial orders and other documents on December 19, 1994. The
court warned that, should any attorney fail to comply with this
order, dismissal or any other appropriate sanction might be
appropriate. As Hastey failed to comply with this order, the
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district court, on December 20, 1994, dismissed1 Hastey's
complaint pursuant to Fed. R. Civ. P. 16(f). Hastey timely
appealed this dismissal.
II. DISCUSSION
This Court liberally construes the briefs of pro se
litigants. Price v. Digital Equip. Corp., 846 F.2d 1026, 1028
(5th Cir. 1988). Construed liberally, Hastey contends in his
brief that the district court erred in dismissing his complaint
for failure to comply with the scheduling order.
Federal Rule of Civil Procedure 16(f) provides that a court
may impose penalties, including a dismissal with prejudice, "[i]f
a party or party's attorney fails to obey a scheduling or
pretrial order." We review a district court's decision to
dismiss under Rule 16(f) only for an abuse of discretion. Price
v. McGlathery, 792 F.2d 472, 474 (5th Cir. 1986). However,
because a dismissal with prejudice is such a harsh sanction, the
district court should employ this penalty only when there is a
clear record of delay or contumacious conduct by the plaintiff
and lesser sanctions would not serve the best interests of
justice.2 John v. State of Louisiana, 828 F.2d 1129, 1131 (5th
1
The district court did not indicate whether this
dismissal was with or without prejudice. Generally, though, a
judgment that is silent regarding prejudice operates with
prejudice. Graves v. Hampton, 1 F.3d 315, 318 (5th Cir. 1993).
2
Additionally, most courts affirming dismissals have found
at least one of three aggravating factors: 1) delay caused by the
plaintiff himself and not his attorney; 2) actual prejudice to
the defendant; or 3) delay caused by intentional conduct. Price,
792 F.2d at 474.
3
Cir. 1987); McNeal v. Papasan, 842 F.2d 787, 790 (5th Cir. 1988).
In the instant case, the record does not reflect a clear
pattern of delay or contumacious conduct by Hastey. It is true
that Hastey did not show up at his scheduled deposition, but the
district court denied the defendants' motion for sanctions on
that issue. Beyond that failure, there is little to show
contumacy or intentional delay. The most that can be said is
that Hastey filed his complaint and took no further action.
Moreover, no other sanction was ever employed nor is there
anything in the record to inform us as to whether the district
court ever even considered the efficacy of lesser sanctions.
Instead, only one day after the final date for compliance with
the pre-trial order, the district court jumped immediately to a
death penalty sanction.
In their brief to this Court, the defendants argue that no
lesser sanction would have served the ends of justice because
Hastey, who was proceeding in forma pauperis, would have been
unable to satisfy any monetary sanction. It may be that no other
sanction would have sufficed. However, we are hampered in making
that determination because of a lack of such a finding by the
district court. See Hornbuckle v. Arco Oil & Gas Co., 732 F.2d
1233, 1237 (5th Cir. 1984) (when a district court dismisses with
prejudice findings of fact are essential for our consideration of
the inevitable argument that the dismissal was an abuse of
discretion).
Undoubtedly, some sanction was warranted for the failure of
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Hastey to comply with the district court's order. We cannot,
though, on this record, justify a dismissal with prejudice when
no other sanctions have been tried or even considered.
Accordingly, we remand the case to the district court for
consideration of the efficacy of lesser sanctions.3 Id.III. CONCLUSION
For the reasons stated above, we VACATE the judgment of the
district court and REMAND this case for proceedings consistent
with this opinion.
3
Hastey seeks the appointment of counsel in his appeal
arguing that he is unable to protect his rights owing to the
effects of certain prescription drugs he takes, his lack of legal
training and the complexity of the issues. However, there is no
automatic right to the appointment of counsel in a case pursuant
to 42 U.S.C. § 1983. Jackson v. Dallas Police Department, 811
F.2d 260, 261 (5th Cir. 1986). In fact, a court is not required
to appoint counsel in the absence of "exceptional circumstances."
Cupit v. Jones, 835 F.2d 83, 86 (5th Cir. 1987). We see nothing
exceptional in these circumstances and we decline to appoint
counsel for Hastey.
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