Ali v. Lambert ( 2021 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 16, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
MURTAZA ALI,
Plaintiff - Appellant,
v. No. 20-5084
(D.C. No. 4:16-CV-00027-CVE-FHM)
TRAVIS LAMBERT, Det. Officer, (N.D. Okla.)
Tulsa County Jail; GARY KAISER,
Sgt., Tulsa County Jail,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before HOLMES, MATHESON, and McHUGH, Circuit Judges.
_________________________________
After filing this civil rights case pro se, Murtaza Ali was removed from the
United States because of his criminal record. The case progressed with Mr. Ali
living abroad. But as trial approached, it became increasingly unclear whether
Mr. Ali would be able to attend. The district court found a substantial likelihood that
Mr. Ali’s immigration status would prevent him from reentering the country and,
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
thus, from attending trial. It also found that his testimony would be too important to
allow him to participate in the trial remotely through videoconferencing. After
giving Mr. Ali a chance to obtain permission to reapply for admission to the United
States, the court dismissed the case with prejudice for failure to prosecute.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
Mr. Ali is a citizen of India. In 2003, long before this case, he received a
25-year prison sentence after pleading guilty in an Oklahoma court to accessory after
the fact to first-degree murder. See Okla. Stat. tit. 21, § 173. In 2005, he received an
11-month prison sentence after pleading guilty in federal court to conspiracy to
possess a chemical that may be used to manufacture a controlled substance. See
21 U.S.C. §§ 843(a)(6), 846.
Mr. Ali filed this case in 2016, alleging the defendants violated his
constitutional rights while he was detained at the Tulsa County Jail. He filed the case
from a detention center in Texas, where he was held by United States Immigration
and Customs Enforcement. Around April 1, 2017, he was removed to India, and he
soon settled in the United Arab Emirates. But his location did not become clear to
the court for more than two years because, after his removal, he updated his address
with the court four times, each time listing an address in Texas.
Meanwhile, the case moved forward. The district court dismissed the claims,
and Mr. Ali appealed. Although we affirmed the dismissal of some claims, we
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concluded that Mr. Ali’s excessive-force claims against two defendants should not
have been dismissed. Ali v. Duboise, 763 F. App’x 645, 650–52 (10th Cir. 2019).
The case resumed in the district court in March 2019. In May 2019, Mr. Ali
mentioned in a footnote that he was living in the United Arab Emirates and, nearly
two months later, updated the court with his address there. In a December 2019
hearing conducted by telephone, Mr. Ali opined that he could obtain a visa by
showing embassy officials that he needed to enter the United States to attend trial.
And in his January 2020 deposition, he explained that an immigration attorney told
him that his convictions would prevent him from obtaining a visa, but that an
embassy would “more than likely” issue him a temporary visa if the court filed “an
order requesting [his] presence in the court for a trial.” ROA, Vol. 2 at 264. At that
point, however, he had neither applied for a visa nor requested an order requiring his
presence at trial, even though the case had been reset for trial several times since our
remand.
In March 2020, roughly six weeks before the scheduled trial, Mr. Ali moved to
participate in the trial by videoconference. He said that he lived in the United Arab
Emirates and argued in part that “logistical concerns” and reduction of litigation
costs created a compelling circumstance justifying his appearance by
videoconferencing, id. at 193. The court denied the motion. It found that Mr. Ali’s
residing abroad did not support his request, even if travelling to Oklahoma would
create inconvenience or increased costs for him. It further found that Mr. Ali did not
promptly raise his concerns, as the case had been pending in the district court for
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more than a year after our remand and the current trial date had been set for roughly
three months. And recognizing that the excessive-force claims would require the jury
to assess Mr. Ali’s credibility, the court found that his testimony would be too
important to allow him to appear by videoconferencing.
Mr. Ali soon asked the court to reconsider allowing him to appear at trial by
videoconference, citing the recent spread of COVID-19 and resulting travel
restrictions. He told the court that his local American embassy had stopped issuing
visas until further notice. He admitted that he “would not be issued a visit visa to the
United States as he was deported due to his prior convictions.” Suppl. ROA at 5–6.
The court denied the request because it had recently continued the trial and, as
Mr. Ali acknowledged, his immigration status created an obstacle to his reentering
the country independent of COVID-19.
The defendants moved to dismiss for failure to prosecute, arguing that Mr. Ali
had not tried to enter the United States to prosecute the case and that, in any event,
his immigration status would likely prevent him from doing so. Mr. Ali responded
that he tried to apply for a visa in April 2020 but learned from the local embassy’s
website that, because of COVID-19, it would not be issuing visas until further notice.
He also unsuccessfully moved for an order requiring his physical presence at trial.
The district court agreed with the defendants that the case should be dismissed
if Mr. Ali could not appear at trial. And it gave Mr. Ali additional time to obtain
permission to reapply for admission to the United States, warning that it would
dismiss the case if Mr. Ali could not obtain that permission. The court set a deadline,
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eleven days before trial, for Mr. Ali to obtain permission to reapply for admission to
the country. He did not meet the deadline, and the court dismissed the case with
prejudice.
II. DISCUSSION
Continuing to proceed pro se, Mr. Ali appeals the denial of his motion to
participate in trial remotely and the dismissal of the case for failure to prosecute. 1
We review both of those rulings for an abuse of discretion. Eller v. Trans Union,
LLC, 739 F.3d 467, 477 (10th Cir. 2013) (remote testimony); Ecclesiastes 9:10-11-
12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1143 (10th Cir. 2007) (dismissal for
failure to prosecute). An abuse of discretion occurs when a district court “exceeds
the bounds of permissible choice,” or when it relies on either an erroneous legal
conclusion or a clearly erroneous factual finding. Ecclesiastes, 497 F.3d at 1143
(brackets and quotations omitted). The district court did not abuse its discretion in
this case.
A. Appearing at Trial by Videoconferencing
“The opportunity to judge the demeanor of a witness face-to-face is accorded
great value in our tradition.” Fed. R. Civ. P. 43(a) advisory committee’s note to 1996
amendment. Even so, “[f]or good cause in compelling circumstances and with
appropriate safeguards, the court may permit testimony in open court by
contemporaneous transmission from a different location.” Fed. R. Civ. P. 43(a).
1
Because Mr. Ali represents himself, we construe his filings liberally. See
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
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“The most persuasive showings of good cause and compelling circumstances are
likely to arise when a witness is unable to attend trial for unexpected reasons.”
Fed. R. Civ. P. 43(a) advisory committee’s note to 1996 amendment. “A party who
could reasonably foresee the circumstances offered to justify transmission of
testimony will have special difficulty in showing good cause and the compelling
nature of the circumstances.” Id. “Notice of a desire to transmit testimony from a
different location should be given as soon as the reasons are known . . . .” Id.Mr. Ali argues that COVID-19 restrictions created compelling circumstances,
so the “district court could have” allowed him to appear at trial through
videoconferencing. Aplt. Br. at 19 (capitalization and bold type omitted). But we do
not ask whether the court could have ruled differently than it did; we ask whether the
court’s ruling falls within the range of permissible options. See Ecclesiastes,
497 F.3d at 1143. And Mr. Ali does not dispute the district court’s finding that his
testimony would have been too important to allow him to appear remotely, or its
finding that he did not promptly request to appear remotely. Those findings place the
court’s ruling firmly within the range of permissible options.
Mr. Ali’s remaining arguments do not undermine the district court’s ruling.
His discussion of authority addressing prisoners appearing remotely is unpersuasive
because he would not have been in custody when trial occurred. We will assume
without deciding that, as he argues, videoconferencing is easier to justify in civil
trials than in criminal trials. And we do not dispute his claim that videoconferencing
can reduce litigation costs. In the end, though, neither the civil nature of this case
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nor the potential to reduce litigation costs required the district court to allow him to
appear at trial by videoconferencing.
B. Dismissal for Failure to Prosecute
If the plaintiff fails to prosecute, a defendant may move to dismiss.
Fed. R. Civ. P. 41(b). But “dismissal with prejudice for failure to prosecute is a
severe sanction, a measure of last resort.” Ecclesiastes, 497 F.3d at 1143 (quotations
omitted). Before dismissing a case with prejudice for failure to prosecute, a court
should ordinarily consider at least “(1) the degree of actual prejudice to the other
party; (2) the amount of interference with the judicial process; (3) the litigant’s
culpability; (4) whether the court warned the party in advance that dismissal would
be a likely sanction for noncompliance; and (5) the efficacy of lesser sanctions.” Id.
Dismissal is appropriate “when the aggravating factors outweigh the judicial
system’s strong predisposition to resolve cases on their merits.” Id. at 1144
(quotations omitted).
The district court’s decision to dismiss flowed from its findings that Mr. Ali
initially misled the court about his 2017 removal from the United States; there was a
substantial likelihood that Mr. Ali’s immigration status would prevent his appearance
at trial; and he had only recently tried to reapply for admission to the United States
after it became clear that pandemic restrictions would prevent him from obtaining a
visa. Based on these findings, the court concluded that four factors heavily favored
dismissal: Mr. Ali’s conduct prejudiced the defendants; his conduct interfered with
the judicial process; he was culpable for his removal from the country based on his
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criminal convictions, for misrepresentations about his address, and for his belated
attempt to obtain a visa; and the court lacked adequate options short of dismissal.
The court found that two factors weighed against immediate dismissal: it had not yet
warned Mr. Ali that the case might be dismissed if he could not appear at trial, and he
may not have understood that he needed consent from the Attorney General to
reapply for admission to the country. Rather than dismiss at this point, the court gave
Mr. Ali a chance to obtain permission to reapply for admission.
Mr. Ali primarily argues that the district court should not have dismissed his
case because the COVID-19 pandemic disrupted court proceedings and international
travel. This argument ignores the court’s finding—which Mr. Ali does not appear to
dispute—that his immigration status created a substantial likelihood that he would
not be able to appear in person for trial. His conviction under §§ 843(a)(6) and 846
is an aggravated felony for immigration purposes. See Carachuri-Rosendo v. Holder,
560 U.S. 563, 567 (2010) (explaining that aggravated felonies under the Immigration
and Nationality Act include any felony punishable under the Controlled Substances
Act, 21 U.S.C. §§ 801–904). Quite apart from any pandemic restrictions, then, he
will remain inadmissible to the United States for 20 years from the date of his
removal unless the Attorney General consents to his reapplying for admission sooner.
See 8 U.S.C. § 1182(a)(9)(A). Yet he failed even to request the Attorney General’s
consent until after the district court threatened to dismiss this case. And to the extent
he believed he could obtain a visa if the court entered an order requiring his presence
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at trial, he failed to request such an order until trial had been reset several times and
the defendants had moved to dismiss.
Mr. Ali’s discussion of the five factors underlying the court’s ruling does not
show the court abused its discretion. First, he asserts that the defendants failed to
show prejudice, but he does not explain why they would not suffer prejudice if they
had to continue to defend against his claims with no foreseeable end to the litigation.
Second, he denies interfering with the judicial process, but the record supports the
finding that he initially misled the court about his removal. Third, he denies
culpability, but the record supports the findings that he is to blame for his removal
based on criminal convictions, for his initial misrepresentations about his address,
and for waiting so long before trying to obtain a visa. Fourth, he says the court
dismissed the case without warning, but the court expressly warned him of the
impending dismissal and gave him a chance to avoid it. And fifth, he argues that the
court could have employed less drastic measures—continuing trial or allowing him to
appear by videoconference—but continuing trial would not have changed his
immigration status, and, as we explained above, the court acted within its discretion
when it refused to allow him to appear at trial through videoconferencing.
III. CONCLUSION
We affirm the district court’s judgment.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
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