Foley v. Fix ( 1997 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FREDERICK LYNWOOD FOLEY,
Plaintiff-Appellant,
v.
No. 95-8587
MS. C. FIX; SERGEANT SANTIAGO;
MS. SWISHER,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, District Judge.
(CA-95-1341-R)
Submitted: May 16, 1996
Decided: February 4, 1997
Before RUSSELL, LUTTIG, and WILLIAMS, Circuit Judges.
_________________________________________________________________
Sanctions imposed by published per curiam opinion.
_________________________________________________________________
COUNSEL
Frederick Lynwood Foley, Appellant Pro Se.
_________________________________________________________________
OPINION
PER CURIAM:
This court goes to great lengths to ensure that its doors are open
to all appellants, particularly those who proceed in forma pauperis.
However, when one party repeatedly brings frivolous appeals in abuse
of our processes, he burdens this court's ability to provide a fair and
speedy process to those with legitimate appeals. Frederick Lynwood
Foley, an inmate in the Augusta Correctional Center (ACC), has now
brought his twenty-third appeal in this court in just over a year. The
one characteristic that all of these appeals have in common is that we
have consistently, and summarily, affirmed the district court's dis-
missals or grants of summary judgment. Furthermore, the district
court has warned Foley on more than one occasion that he would be
subject to sanctions if he continued to harass correctional officers by
filing frivolous claims that those officers have taken his personal
property without due process of law. Notwithstanding this warning,
Foley has again brought suit claiming, inter alia, that Sgt. Santiago
took his personal property without due process of law. The district
court appropriately dismissed this claim as "utterly frivolous."
Because Foley's repeated, frivolous claims have placed a significant
burden on this court, as well as on the district court, we ordered Foley
to show cause why he should not be sanctioned for filing frivolous
appeals. Having reviewed his response, we hereby impose sanctions
upon Foley pursuant to Federal Rule of Appellate Procedure 38.
Foley has presented this court with a multitude of claims over the
past year-and-a-half, ranging from complaints about his housing to
allegations that he was given improper medication. Foley's most
recurrent allegation is that prison officials have taken his property. He
has claimed that officials have stolen items such as earplugs, bubble
gum, mayonnaise packets, and cheese spread. Foley v. Wood, No. 95-
0691-R (W.D.Va. July 17, 1995) (earplugs); Foley v. Boyers, No. 95-
0765-R (W.D.Va. Aug. 3, 1995) (bubble gum, mayonnaise packets,
cheese spread). On at least seven occasions (including the case now
on appeal), the district court has dismissed these claims as frivolous
and quoted the following language:
"an intentional . . . deprivation of property by a state
employee does not violate the procedural requirements of
the Due Process Clause of the Fourteenth Amendment if a
meaningful post-deprivation remedy for the loss is avail-
able." Hudson v. Palmer, 468 U.S. 517 (1984). Inasmuch as
plaintiff possesses tort remedies under Virginia state law,
see Virginia Code § 8.01-195.3, it is clear that he cannot
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prevail in a constitutional claim for the alleged property loss
in the instant case.
Foley v. Fix, No. 95-1341-R (W.D.Va. Dec. 19, 1995); Foley v.
Holloway, No. 95-1167-R (W.D.Va. Oct. 26, 1995); Foley v. Boyer,
No. 95-0983-R (W.D.Va. Sept. 5, 1995); Foley v. Boyers, No. 95-
0765-R (W.D.Va. Aug. 3, 1995); Foley v. Wood, No. 95-0691-R
(W.D.Va. July 17, 1995); Foley v. Starkey, No. 95-C268-R (W.D.Va.
Mar. 21, 1995); Foley v. Talbert, No. 95-0211-R (W.D.Va. Mar. 6,
1995). Because Foley continued to bring § 1983 claims for property
deprivation rather than pursue state tort remedies, the district court
notified Foley "that he may be sanctioned for filing frivolous plead-
ings if he continue[d] to bring property deprivation claims" in the dis-
trict court. Foley v. Boyer, No. 95-0983-R (W.D.Va. Sept. 5, 1995).
When Foley again brought such a claim, the district court notified
Foley that "if he again files a lawsuit under§ 1983, claiming that cor-
rectional officers have taken his personal property without due pro-
cess, the court shall assume that he is filing that lawsuit with the sole
purpose of harassing the defendants. The court shall then direct him
to show cause why monetary sanctions should not be imposed under
Rule 11." Foley v. Holloway, No. 95-1167-R (W.D.Va. Oct. 26,
1995). Despite the district court's clear warnings, Foley has again
claimed that a prison official intentionally deprived him of property.
As the district court has pointed out, "Foley is well aware from past
opinions in his cases" that such an allegation fails to state a claim
under § 1983. Foley v. Fix, No. 95-1341-R (W.D.Va. Dec. 19, 1995).
In light of the district court's clear and consistent holdings that
Foley's property deprivation claims have been frivolous and this
court's affirmance of those holdings, Foley's frequent appeals of
these and other frivolous claims warrant the imposition of sanctions
under Federal Rule of Appellate Procedure 38.
Furthermore, Foley's frivolous appeals of other claims bolster our
conclusion that sanctions are not only appropriate, but also necessary
to stem Foley's frivolous appeals. For example, Foley brought a
wrongful conviction claim because the reporting officer said that the
strips of cloth which gave rise to Foley's destruction of state property
charge came from a pillow, when Foley had instead (as evidenced by
Foley's own complaint) cut them from a mattress. The district court
dismissed this claim as frivolous. Foley v. Talbert, No. 95-0688-R
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(W.D.Va. July 17, 1995). The district court also denied as "utterly
frivolous" Foley's request for a temporary restraining order against a
correctional officer who allegedly "rakes through[Foley's] bag of
Rolaids and his legal papers, looking for contraband." Foley v.
Starkey, No. 95-C268-R (Mar. 21, 1995). The district court noted that
the request had "the ring of a kindergartner tattling to his teacher." Id.
Similarly, Foley brought a § 1983 claim alleging that the broken light
over the sink in his cell gave him insufficient light to floss his teeth
and shave. Foley v. Huffman, No. 95-1013-R (W.D.Va. Sept. 12,
1995).
Ironically, Foley's persistent petitioning has become a source of a
whole series of additional frivolous claims by Foley. For example,
Foley brought a frivolous claim that the chief security officer at
Augusta Correctional Center had an obligation to prosecute an institu-
tional charge against another inmate who allegedly wanted to charge
Foley money for helping him with legal work. Foley v. Day, No. 95-
0269-R (W.D.Va. Mar. 21, 1995). Also, when Foley claimed that cor-
rectional officers retaliated against him for his previously filed law-
suits by requiring him to stand next to his bed for"count" (a
procedure in which prison officials count the inmates), Foley had to
admit that he stayed up nights writing new petitions and therefore was
too tired to get up in the morning for "count." This prompted the dis-
trict court to quip, "[a]lthough the court recognizes Foley's heavy
caseload, no constitutional rights are implicated by requiring Foley to
stand next to his bed in the morning." Foley v. Gettier, No. 94-0536-
R (W.D.Va. July 17, 1995).
Foley has magnified the costs of his frivolous litigation by persis-
tently appealing his claims after they have been dismissed as frivo-
lous. And it is obvious that the mere threat of sanctions has not caused
Foley to restrain himself.
Under F.R.A.P. 38, we are authorized to impose sanctions upon
appellants for the filing of frivolous appeals. Bast v. Cohen, Dunn &
Sinclair, PC, 59 F.3d 492 (4th Cir. 1995). F.R.A.P. 38 provides:
If a court of appeals determines that an appeal is frivolous,
it may, after a separately filed motion or notice from the
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court and reasonable opportunity to respond, award just
damages and single or double costs to the appellee.
Such "just damages" and "costs," include"damages, attorney's fees
and other expenses incurred by an appellee if the appeal is frivolous,"
regardless of whether "the appeal resulted in delay." F.R.A.P. 38,
Advisory Committee Notes. We are authorized to award such dam-
ages and costs "in [our] discretion in the case of a frivolous appeal
as a matter of justice to the appellee and as a penalty against the
appellant." Id.
Here, we ordered appellant to show cause as to why he should not
be sanctioned for filing a frivolous appeal, thereby providing him
with "notice from the court and reasonable opportunity to respond."
F.R.A.P. 38. Having reviewed the appellant's response to our order,
we now conclude that the appeal was indeed "frivolous," and there-
fore impose the following sanctions upon the appellant. In lieu of par-
ticularized fees and costs, we award the amount of $500 to the
appellees, as we have frequently done in similar circumstances. See,
e.g., Peeples v. Commissioner of Internal Revenue, No. 87-1053 (4th
Cir. Sept. 23, 1987) (unpublished); Leining v. Commissioner, No. 86-
1253 (4th Cir. July 21, 1987) (unpublished); United States v. Bowser,
No. 86-1241 (4th Cir. April 22, 1987) (unpublished); United States v.
Wissig, No. 86-1188 (4th Cir. Dec. 29, 1986) (unpublished);
Chapman v. Egger, No. 86-2151 (4th Cir. Oct. 21, 1986) (unpub-
lished); Jensen v. United States, No. 86-1504 (4th Cir. June 25, 1986)
(unpublished), motion for accounting and cert . denied, 479 U.S. 924
(Oct. 20, 1986). This money shall be payable to the Warden of the
Augusta Correctional Center in his official capacity. Additionally, fol-
lowing a practice adopted in one of our sister circuits, we enjoin
appellant from filing any further civil actions in this court until these
monetary sanctions are paid, and unless a district court judge certifies
that his claim is not frivolous. See Smith v. McCleod, 946 F.2d 417,
418 (5th Cir. 1991) (ordering that petitioner "be barred from filing
any further appeals in this court until (1) the sanctions awarded by
this court and the district court are fully paid; and (2) a district court
certifies his appeal as having some arguable merit"); cf. Shief v.
Kakita, 116 S. Ct. 1311 (1996) (directing "the Clerk not to accept any
further petitions for certiorari from [appellant] in noncriminal matters
unless he pays the docketing fee required by [Supreme Court] Rule
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38 and submits his petition in compliance with [Supreme Court] Rule
33.1"); Jones v. ABC-TV, 116 S. Ct. 870 (1996) (same); Attwood v.
Singletary, 116 S. Ct. 769 (1996) (same); Whitaker v. Superior Court
of California, San Francisco County, 115 S. Ct. 1446 (1995) (same).
It is so ordered
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