Stevenson v. Green ( 1997 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-20035
Summary Calendar
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STEVEN STEVENSON,
Plaintiff-Appellee,
v.
LORIE L. GREEN, ET. AL.,
Defendants,
LORIE L. GREEN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(CA-H-92-1794)
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January 28, 1997
Before JONES, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
There seems to have been a series of miscommunications in
this case involving the district court as well as defense counsel.
*
Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
Our reading of the record does not justify the court’s imposition
of a sanction on Green, much less the entry of a default judgment
against her. The district court may have misread the record that
developed before a magistrate judge and another district judge, but
his reproofs of Green were too severe. We reverse and remand.
Judge Kenneth Hoyt conducted a hearing pursuant to Spears
v. McCotter, 766 F.2d 179 (5th Cir. 1985) in this § 1983 suit by a
male prisoner against, inter alia, a female guard for sexual
harassment. A representative of the Texas Attorney General’s
office who was not the attorney of record appeared on behalf of the
defendants. After listening to Stevenson’s allegations about
Green’s conduct and that he had not received a hearing on his
grievances, Judge Hoyt dismissed Stevenson’s claim against Warden
Peterson because there was no evidence of any personal involvement
by Peterson, but he ordered the “defendants”, including Green, to
be served “if she has not been served” and the “Director of TDCJ”
to respond within 120 days from the date of the hearing.
Elaborating on his order, Judge Hoyt explained that an order would
be issued to all counsel that they must submit
any records, business records or copies or additional
documents relative to the Plaintiff’s claim, including
copies of all grievances that the Plaintiff has filed
that are on file with the adminis -- with the appropriate
department, including the Internal Affairs, directing
that they also deliver copies of any records or files
that they might have to be attached to this motion and
made a part of the -- any motion filed.
Following that motion, Mr. Stevenson, you’ll be
given 45 days to respond, if you believe it’s necessary,
to the motion filed by the Defendants. Failing to
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respond could result in dismissal of your case, so make
sure you understand that you have an appropriate
responsibility or a responsibility to respond
appropriately once the motion has been filed.
The minutes from the hearing stated that the defendants were
“ordered to filed a motion for summary judgment within 120 days,
accompanied by sworn copies of the relevant records.” A written
order was not mailed to counsel, and neither Lynaugh nor TDCJ were
served.
Over six months later and after the defendants failed to
file any further motion, Stevenson moved for a default judgment.
No certificate of service accompanied the motion. Judge Hughes,
the assigned judge, struck Green’s answer and sanctioned Green,
Lynaugh, and “the Texas Department of Criminal Justice
Administration” $100 each for failing to comply with Judge Hoyt’s
order.
Green requested that the court reconsider its ruling.
Green noted that neither Lynaugh nor TDCJ had been served, that her
counsel of record had not received a copy of Judge Hoyt’s order or
Stevenson’s default motion, and that counsel learned of Judge
Hoyt’s order only after Judge Hughes sanctioned the defendants.
Green also filed a “first amended answer and jury demand.” About
a month later, Green also requested that she be given a month to
file her motion for summary judgment. Green averred that there
were no factual questions remaining and that her failure to file
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the motion was not “intentional.” Counsel “humbly” requested that
Green not be punished for “an inadvertently missed deadline.” Id.
The court granted the extension, but by the time the
court acted, the extension of time had already passed and Green had
not filed any other motion. Within a week of the court’s order,
Green filed a motion for summary judgment, in which she swore that
she did not even touch Stevenson, much less fondle him.
Stevenson responded, although his response is not in the
record. Stevenson also reurged his motion for a default judgment.
The court ordered that Green’s amended answer be stricken
because it was filed without leave, that the monetary sanction
imposed against Lynaugh and TDCJ be refunded, that Stevenson take
“a judgment nil dicit” against Green on liability, and that the
parties file affidavits regarding damages.
Green moved to vacate the court’s order, for leave to
file her first amended answer out of time, and to strike
Stevenson’s motions for default judgment. Green argued that the
sanction imposed by the district court, granting judgment in favor
of Stevenson, was too harsh and that the district court failed to
consider less severe sanctions.
Stevenson submitted an affidavit averring that he
suffered $250,000 in actual damages, and he requested an additional
$250,000 for punitive damages and mental anguish. Green countered
that Stevenson offered only conclusional allegations of injury and,
thus, was not entitled to damages.
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The district court granted Stevenson a default judgment,
explaining that
This case is yet another example of the attorney
general failing in his duty. On June 28, 1994, the
attorney [sic] general appeared at a Spears hearing where
Judge Kenneth Hoyt ordered him to move for summary
judgment within 120 days. When the attorney general
failed to move or otherwise answer, this court granted
Stevenson a default judgment.
The court held that Green, Lynaugh, and TDCJ were jointly and
severally liable to Stevenson for $600 in damages for Stevenson’s
being fondled without his consent.1
Only Green timely appealed. Green argues that the
district court abused its discretion in imposing a sanction, given
that the court never served a written order regarding the necessity
of filing a motion and the oral order was unclear. Green contends
that the court’s statements during the hearing could be construed
to mean that a motion was not required to be filed by her and that
she was denied due process because a copy of the motion for default
was not served on her and the court ruled on the motion within 7
days, rather than the 20 days allowed by local rule. Before the
Spears hearing, she had filed a motion to dismiss. Even if there
was a basis for imposing a sanction, Green argues, the district
court abused its discretion in entering a default judgment against
her because she did not engage in wilful misconduct or act in bad
faith, she actively prosecuted this case, timely opposing every
1
The district court subsequently vacated judgment against
Lynaugh and TDCJ, which were never served.
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motion filed by Stevenson and served upon her, and the court failed
to consider alternative, less severe sanctions.
This court has confined the sanction of dismissal under
the district court's inherent power to instances of "bad faith or
willful abuse of the judicial process." E.E.O.C. v. General
Dynamics, 999 F.2d 113, 119 (5th Cir. 1993)(noting that the "death
penalty" sanction of striking pleadings is appropriate "only under
extreme circumstances" such as willfulness or bad faith). When the
district court imposes such a “death penalty” sanction, this court
may also consider whether a less severe remedy would be more
tailored to the specific misconduct at issue. See Pressey 898 F.2d
at 1021.
This court reviews a district court’s imposition of
sanctions under its inherent power for an abuse of discretion.
Chambers v. Nasco, Inc., 501 U.S. 32, 55 (1991); Childs v. State
Farm Mut. Auto. Ins. Co., 29 F.3d 1018, 1023 (5th Cir 1994).
Further, a district court’s judgment of default, which is the
substance of the nil dicit judgment entered here, is reviewed for
abuse of discretion and its subsidiary findings of fact for clear
error. CJC Holdings v. Wright & Lato, 979 F.2d 60, 63-64 (5th Cir.
1992). This court favors adjudicating cases on their merits;
accordingly, even a slight abuse of discretion may justify
reversal. Id. at 63 n.1.
Green’s counsel does not argue that she did not know
about the Spears hearing. A representative of the state Attorney
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General’s office attended the Spears hearing on behalf of the
defendants and heard the judge’s order to file an appropriate
motion in response to Stevenson’s complaint. But, as Green points
out, whether the court intended for Green to file the motion is
unclear, as the court specifically ordered TDCJ to file a motion.
TDCJ, however, was never served. Even if Green should have filed
the motion, the district court’s use of the so-called “death
penalty” is unduly harsh. The district court imposed monetary
sanctions, struck Green’s answer and amended answer, and entered
judgment nil dicit in favor of Stevenson, without any consideration
whether alternative sanctions would be appropriate. The record
does not demonstrate bad faith, willful abuse of the judicial
process, or other such extreme circumstances warranting such
sanctions. See E.E.O.C. v. General Dynamics, 999 F.2d at 119. On
the contrary, Green tried to protect her interests at every turn,
from the initial motion to dismiss to responding promptly to every
pleading and order of which she was aware -- save the vague oral
order emanating from the Spears hearing. Her one misstep did not
deserve the severe sanctions, which constitute an abuse of
discretion. Accordingly, the district court’s judgment nil dicit
must be VACATED and the case REMANDED to allow Green to present any
defenses she may have available against Stevenson’s claims.
VACATED and REMANDED.
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