Jermel Pope v. Jeffrey Krueger ( 2019 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 10, 2019*
Decided April 11, 2019
Before
AMY C. BARRETT, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 18-2136
JERMEL POPE, Appeal from the United States District
Plaintiff-Appellant, Court for the Central District of Illinois.
v. No. 16-cv-1059
JEFFREY KRUEGER, et al., Sara L. Darrow,
Defendants-Appellees. Chief Judge.
ORDER
Jermel Pope, a former federal prisoner, appeals the district court’s dismissal of
his suit against the Federal Bureau of Prisons and several of its administrators for race
discrimination and retaliation. The district court dismissed his suit after he failed to
comply with an order to pay the defendants’ costs. We affirm.
*We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 18-2136 Page 2
Pope brought this suit while in prison, alleging that defendants discriminated
against him based on race when they dismissed him from a federal work program job,
see 42 U.S.C. §§ 2000e et seq., and assaulted him in retaliation for filing a grievance. After
he filed this suit and was granted in forma pauperis (“IFP”) status, Pope was released
from prison.
After further proceedings, the district court granted the defendants’ motion for
judgment on the pleadings in part and denied it in part. The court agreed with the
defendants that Title VII does not apply to an inmate participating in a federal work
program but disagreed with the defendants that Pope had not alleged sufficient facts to
state a retaliation claim under the First Amendment. The court allowed Pope to proceed
on that claim.
Discovery ensued, and the defendants notified Pope that they had scheduled to
depose him on January 18, 2018, in Peoria, Illinois. Pope did not appear for the
deposition. He later explained that one of his supervised-release conditions prohibited
him from leaving the jurisdiction of the Northern District of Illinois without his
probation officer’s permission.
Based on Pope’s failure to appear at his scheduled deposition, the defendants
asked the district court to sanction him under Federal Rule of Civil Procedure 37(b) by
dismissing the case or, alternatively, by ordering him to pay their expenses for
convening the deposition. The court, however, sympathized with Pope’s concern about
violating his supervised release and declined to dismiss the case without providing a
“warning shot” that his failure to attend a deposition could lead to dismissal of his case.
See FED. R. CIV. P. 37(b)(2)(A)(v). The court decided to “try the lesser sanction” of
requiring Pope to pay the defendants’ reasonable costs incurred as a result of his failure
to appear—costs that it later determined to be $349.27—and warned Pope that his
failure to pay those costs within 21 days (in other words, by March 2, 2018) could result
in dismissal of his case.
On March 9, Pope objected to the amount of the award, which he asked the court
to lower to $300 and allow him to pay in $50 monthly increments. In an affidavit, he
explained that his $1700 average monthly earnings were more than offset by monthly
expenses totaling $1850. The court denied Pope’s request ten days later, finding, first,
that he had not demonstrated an inability to pay the sanction, and, second, that any
reduction in the amount would undermine the message that Pope had to comply with
the Federal Rules of Civil Procedure and the court’s orders.
No. 18-2136 Page 3
On March 29, the defendants filed a second motion to dismiss the case “for
failure to prosecute and comply with the orders of the Court.” Pope responded two
weeks later, stating that he was beset by many financial obligations and needed another
45 to 60 days to pay the full amount of the sanction.
On April 20, the district judge dismissed the case, using language that drew
upon both Federal Rules of Civil Procedure 37(b) and 41(b). The judge ostensibly
dismissed the action under Rule 41(b), saying that she granted the defendants’ second
motion to dismiss because Pope had “demonstrated an unwillingness to follow this
Court’s Orders.” Rule 41(b) provides: “If the plaintiff fails to prosecute or to comply
with … a court order, a defendant may move to dismiss the action or any claim against
it.” At the same time, the judge appeared to nod to Rule 37(b)(2)(A)(v), which allows a
court to sanction a party for noncompliance with discovery caused by “willfulness, bad
faith or fault,” Brown v. Columbia Sussex Corp., 664 F.3d 182, 190 (7th Cir. 2011).
Characterizing Pope’s conduct as “egregious,” she highlighted Pope’s failure to pay any
amount toward his filing fees and observed—citing another district court’s decision that
applied Rule 37(b), Loop AI Labs Inc. v. Gatti, 2017 WL 934599, at *14 (N.D. Cal. Mar. 9,
2017)—that a court cannot effectively manage a case if its orders are viewed as
suggestions rather than mandates.
On appeal, we first must clarify some confusion over what sanctioning authority
the judge relied upon in dismissing Pope’s suit. As noted, the judge made references
that could be construed as invoking both Rule 41(b) and Rule 37. Neither rule, however,
neatly fits with the procedural background of this case. Rule 41(b), for instance, permits
a defendant to file a motion to dismiss the action if the plaintiff fails to comply with a
court order, but the defendants here have never invoked this rule. And while Rule 37
concerns a party’s failure to cooperate in discovery, see, e.g., Ramirez v. T&H Lemont, Inc.,
845 F.3d 772, 775–76 (7th Cir. 2016); Brandt v. Vulcan, 30 F.3d 752, 756 (7th Cir. 1994)
(“Rule 37(b)(2) has been invoked only against parties who have disobeyed a discovery
ruling of some sort.”), the court’s explicit basis here for dismissing Pope’s case was not
his violation of any discovery order, but his failure to pay the defendants’ costs and his
own filing fees. Nevertheless, this confusion does not affect the appropriateness of
dismissal because district courts have inherent authority to dismiss a suit for a lack of
prosecution or refusal to comply with court orders. See Link v. Wabash R. Co., 370 U.S.
626, 630–31 (1962).
No. 18-2136 Page 4
Pope devotes most of his appellate brief to challenging the district court’s
assessment of his Title VII claim, but his principal challenge to the district court’s
ultimate dismissal of his suit as a sanction is that the court disregarded his indigent
status and failed to give him enough time to pay the defendants’ costs. He suggests that
since his application for IFP was granted while he still was in prison, the district court
should have allowed him similar leeway to pay the sanction in smaller increments. He
further asserts that he cannot afford to pay the sanction given his monthly expenses of
$1850 that exceed his monthly income of $1700.
Based on Pope’s word only, we cannot say that the district court abused its
discretion in deciding that his claim of indigency, absent any supporting evidence, was
insufficient to excuse payment. At the time of his deposition, Pope already had been
released from prison and was employed; that he was granted IFP status while in prison
may have excused him from prepaying his filing fees, but it did not excuse him from
paying the defendants’ costs. See Robbins v. Switzer, 104 F.3d 895, 898 (7th Cir. 1997).
Pope next asserts generally that the outright dismissal of his case as a sanction
for failing to pay the defendants’ costs was improper. But district courts have “inherent
power to sanction a party who has willfully abused the judicial process or otherwise
conducted litigation in bad faith.” Secrease v. W. & S. Life Ins. Co., 800 F.3d 397, 401
(7th Cir. 2015) (internal quotation marks omitted). As the district court emphasized,
Pope’s conduct toward the court was “egregious.” He did not pay any of the
defendants’ costs, even though the district court warned him that his failure to pay
would result in dismissal. Given his foot-dragging—for instance, he first submitted his
motion to reduce the amount of the sanction a week after the deadline to pay, and even
seven weeks after the court’s order he still had not paid anything—the court stated that
it had “no confidence” that Pope would ever comply with its order. Even after being
released from prison and resuming work, Pope still was not paying any amount
towards his filing fees, despite his obligation to do so. His unwillingness to pay these
fees alone justifies dismissal. See Robbins, 104 F.3d at 898–99; Rosas v. Roman Catholic
Archdiocese of Chicago, 748 F. App’x 64, 65 (7th Cir. 2019).
Because the district court acted within its discretion to dismiss Pope’s case as a
sanction, we need not address Pope’s challenges to the merits of his case.
AFFIRMED