Firas Ayoubi v. Thomas Dart , 640 F. App'x 524 ( 2016 )

NONPRECEDENTIAL DISPOSITION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 February 11, 2016*
Decided March 3, 2016
Before
DIANE P. WOOD, Chief Judge
RICHARD A. POSNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 14-2964
FIRAS M. AYOUBI, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 14 C 50
THOMAS J. DART, et al.,
Defendants-Appellees. Charles R. Norgle,
Judge.
ORDER
Firas Ayoubi, a pretrial detainee at the Cook County Jail, sued several members
of the jail’s staff under 42 U.S.C. § 1983 for violating the Eighth Amendment by
punching him and ignoring his resulting chest pains. Four months after he sued, the
judge found that, in asking the court to grant him greater access to the jail’s law library,
Ayoubi had lied about how often he was allowed in that library. To punish his fraud,
*After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus the appeal is submitted on the briefs and the record.
See FED. R. APP. P. 34(a)(2)(C).
No. 14-2964 Page 2
the court dismissed the case with prejudice. Ayoubi twice moved for reconsideration,
arguing that he had made an innocent mistake. The district court considered his
submissions, but disbelieved him and denied his motions. Although the district judge
should have asked for Ayoubi’s response before dismissing the suit, we conclude that
the misstep was harmless: The judge entertained the motions to reconsider, the
renewed fraud findings were not clearly wrong, and the sanction was reasonable. We
therefore affirm the judgment.
Early in the litigation, Ayoubi twice asked the district court to order jail officials
to allow him more time in the law library. The judge denied the first request, which
sought 10 hours of library time each week. Although he denied the motion, the judge
nonetheless “request[ed] that jail officials grant the plaintiff reasonable access to the law
library” so he could work on his pending suit. Seven weeks later, Ayoubi filed a second
motion for library access. He stated that jail officials had “totally disregarded” the
court’s request. He was specific: In the seven weeks since the request, the defendants
had “worse[ned]” his access, decreasing it from once “every 2 to 3 weeks” to “once
every 3 to 4 weeks.” This assertion implied that, in the previous seven weeks, he visited
the library at most only three times.
The defendants responded that Ayoubi had lied. They submitted an affidavit
from a supervisor with the Department of Inmate Services, which authenticated dated
logs from the library. The supervisor stated that detainees sign the logs “each time they
attend the law library.” The logs show that Ayoubi signed into the library on five
separate dates in the seven weeks between the court’s request for library access and
Ayoubi’s motion accusing the defendants of “totally” ignoring the request. That rate
was slightly better than in the five weeks preceding the court’s request, when Ayoubi
had signed in on three dates. The defendants asked the court to use its inherent power
to dismiss the case as a sanction for Ayoubi’s fraud in accusing them of “totally
disregard[ing]” the court’s request.
The district court dismissed the case with prejudice. It found that the library’s
logs established that Ayoubi had “outright misrepresented” that jail officials had
ignored its request to provide reasonable access. As further evidence of Ayoubi’s
dishonesty in asserting that he lacked adequate access to the law library, the judge also
noted that he had filed 10 lawsuits in the preceding 6 months and managed “to churn
out a steady stream of filings” in those cases. The judge concluded that dismissal with
prejudice was warranted under the court’s inherent authority to punish fraud on the
No. 14-2964 Page 3
court: Ayoubi needed “a strong message about being punctiliously truthful, ethical, and
forthright during the litigation process.”
Four days later Ayoubi responded. He had not yet received the notice of the
dismissal but was answering the defendants’ motion. He asked to “withdraw” the
section of his motion asserting that he had used the library only once every three to four
weeks, admitting it was an “error.” By affidavit Ayoubi stated that he has a “bad
memory,” “forgot” when the court issued its request, and had no “recall” of three visits,
so his error was “unintentional.” The court denied Ayoubi’s motion to withdraw as
moot.
Ayoubi moved twice for reconsideration. He urged the court to consider his
affidavit. He also added in an unsworn assertion that he suffers from “ADHD,” which
he believes leads to “incoherence, impulsivity, memory issues, inattentiveness,
forgetfulness, and absentmindedness.” The judge considered his submissions but
denied the motions, finding again that Ayoubi’s error was not “inadvertent.”
On appeal Ayoubi challenges the dismissal of his suit. We review findings of
fraud for clear error and the dismissal of the suit as a sanction for fraud for abuse of
discretion. Secrease v. W. & S. Life Ins. Co., 800 F.3d 397, 411 (7th Cir. 2015); Hoskins v.
Dart, 633 F.3d 541, 543 (7th Cir. 2011).
Ayoubi argues on appeal that the judge erred in relying on the library’s
attendance logs, but he is mistaken. He contends that, because “white-out” was used on
the date of one page of the log, the entire log is suspect. But the logs’ reliability was
established by an uncontradicted affidavit from the prison supervisor. Moreover,
Ayoubi forfeited this challenge when he did not raise the “white-out” issue before the
district court in his motions to reconsider. See Wallace v. McGlothan, 606 F.3d 410, 425
(7th Cir. 2010). And even if he had raised this objection, because Ayoubi could only
speculate about the reason for the “white out,” the district court would not have abused
his discretion in overruling it. See United States v. Ajayi, 808 F.3d 1113, 1121 (7th Cir.
2015). Thus the judge permissibly relied on the logs to find that the defendants had not
“totally disregarded” the court’s request to give Ayoubi library access.
Ayoubi next asserts that he unintentionally miscalculated how often he had gone
to the library, but the district court did not clearly err in finding otherwise. When he
charged jail officials with decreasing his library access, Ayoubi knew that he had a “bad
memory.” Despite its relevance, he did not mention that problem to the court, or allow
that it might affect his recall of when he went to the library; to the contrary, he
No. 14-2964 Page 4
unequivocally accused the defendants of “totally disregard[ing]” the court. Only after
the court learned about his admitted “error” did he proclaim to have a “bad memory”
and ADHD. A “newly advanced position,” crafted only to exonerate litigation
misconduct, need not be believed. See Mulero-Abreu v. P. R. Police Dep’t., 675 F.3d 88, 93
(1st Cir. 2012). Moreover, as the judge noted, Ayoubi’s plethora of court filings in other
cases during this time of supposed reduced access further belied his accusation. Thus
we conclude that there is ample support for the district court’s finding that Ayoubi’s
misrepresentation was willful.
Ayoubi next argues that the district court committed reversible error by
imposing the sanction of dismissal without first granting him notice and a hearing.
Before exercising its inherent authority to sanction misconduct, a court must notify the
litigant of the specific misdeed that is the basis for possible sanction and allow the
litigant an opportunity to respond. See Chambers v. NASCO, Inc., 501 U.S. 32, 50 (1991);
Johnson v. Cherry, 422 F.3d 540, 549 (7th Cir. 2005); Larsen v. City of Beloit, 130 F.3d 1278,
1286–87 (7th Cir. 1997). Ayoubi contends that, before the court imposed sanctions, he
should have had an opportunity to address the accusation that he had lied to the court.
But the failure to grant advance notice and a hearing, like any other error, can be
harmless. FED. R. CIV. P. 61; see El-Gazawy v. Holder, 690 F.3d 852, 860 (7th Cir. 2012); In re
Hancock, 192 F.3d 1083, 1086 (7th Cir. 1999); Sun River Energy, Inc. v. Nelson, 800 F.3d
1219, 1230–31 (10th Cir. 2015). And the absence of a pre-dismissal hearing was harmless
here because the district court addressed all the arguments that Ayoubi wanted to raise
when it entertained his motions to reconsider.
Ayoubi replies that the district court had to give him a live hearing. But in the
context of a request for sanctions, a live hearing is necessary only if “it could assist the
court in its decision.” Kapco Mfg. Co. v. C & O Enters., Inc., 886 F.2d 1485, 1495 (7th Cir.
1989); Sun River Energy, 800 F.3d at 1230–31; Pac. Harbor Capital, Inc. v. Carnival Air Lines,
Inc., 210 F.3d 1112, 1118 (9th Cir. 2000); Childs v. State Farm Mut. Auto. Ins. Co., 29 F.3d
1018, 1027 (5th Cir. 1994). Although a live hearing can reveal demeanor, “demeanor
evidence, such as tone of voice, or gestures or posture, can be an unreliable clue to
truthfulness or untruthfulness, and thus distract a trier of fact from the cognitive
content of a witness’s testimony.” United States v. Pickering, 794 F.3d 802, 805 (7th Cir.
2015) (citing studies questioning the reliability of demeanor evidence).
A live hearing was not necessary in this case. The “cognitive” content of
Ayoubi’s testimony was his assertion of a “bad memory.” But Ayoubi’s credibility
problem was his inconsistency. He had accused the defendants with certitude, implying
No. 14-2964 Page 5
that his memory about the previous seven weeks was normal. Yet, after the defendants
proved the falsity of his accusation, he professed to have overwhelming “memory
issues.” A live hearing could not have negated this inconsistency or its adverse effect on
his credibility. See Sullivan v. Running Waters Irrigation, Inc., 739 F.3d 354, 360
(7th Cir. 2014) (reasoning that remand for live hearing not required when record amply
supported court’s finding and “it is unlikely that the absence of the credibility
observations would disturb” the finding).
Ayoubi’s final argument is that the sanction of dismissal with prejudice is too
harsh. A court should generally consider lesser sanctions before settling upon dismissal.
See Rivera v. Drake, 767 F.3d 685, 686–87 (7th Cir. 2014); Hoskins, 633 F.3d at 543–44;
Oliver v. Gramley, 200 F.3d 465, 466 (7th Cir. 1999). But we have held that a dismissal
with prejudice is an appropriate sanction for lying to the court in order to receive a
benefit from it, because no one needs to be warned not to lie to the judiciary. See Mathis
v. N. Y. Life Ins. Co., 133 F.3d 546, 547 (7th Cir. 1998); see also Jackson v. Murphy, 468 Fed.
Appx. 616, 620 (7th Cir. 2012). We have approved that sanction when a litigant has lied
to receive the benefit of proceeding in forma pauperis, observing that fines would be an
ineffective sanction against an indigent plaintiff. See Hoskins, 633 F.3d at 543–44
(upholding dismissal with prejudice as sanction for litigant who lied about litigation
history on complaint); Thomas v. Gen. Motors Acceptance Corp., 288 F.3d 305, 308 (7th Cir.
2002) (upholding dismissal with prejudice as sanction for litigant who lied about
income on IFP application). Given that Abouyi too is indigent, the court did not abuse
its discretion in dismissing his suit with prejudice as a sanction for his lie in seeking
court-ordered library access.
We have considered Ayoubi’s remaining arguments, and none has merit.
AFFIRMED.