Hope v. Patrick ( 2023 )

Case: 19-50562 Document: 00516770258 Page: 1 Date Filed: 05/31/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
May 31, 2023
No. 19-50562
Lyle W. Cayce
Clerk
Russell Hope, Jr.,
Plaintiff—Appellant,
versus
Anthony J. Patrick; William A. Burroughs; Daniel
Parker; Ibu Zaffa; Francisco Gonzalez; Marcus
Dorman,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Texas
No. 6:17-CV-317
Before Richman, Chief Judge, and Dennis and Haynes, Circuit
Judges.
Per Curiam:*
Russell Hope, Jr. appeals the district court’s Rule 41(b) dismissal of
his § 1983 action. Because the district court abused its discretion by
concluding that lesser sanctions would not prompt diligent prosecution, we
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 19-50562 Document: 00516770258 Page: 2 Date Filed: 05/31/2023
No. 19-50562
vacate the order of dismissal and remand for the imposition of a lesser
sanction and further proceedings consistent with this opinion.
I
Hope, an inmate in the custody of the Texas Department of Criminal
Justice (TDCJ), filed a pro se § 1983 action against several TDCJ officials
after he was allegedly assaulted during transport between correctional
facilities. The district court appointed counsel to represent Hope, and Hope
diligently pursued his claims, submitting numerous discovery requests and
deposing nine witnesses. The court ultimately set trial for 9:00 a.m. on
February 4, 2019. Shortly before trial, TDCJ transferred Hope to the Hughes
Unit, a correctional facility thirty-eight miles from Waco, where the trial was
to take place. Coincidentally, the Hughes Unit is the facility where the
alleged assault underlying Hope’s suit occurred. Hope asserts that, in the
days before trial, Hughes Unit officers taunted him and withheld his meals in
retaliation for the lawsuit.
On the morning of trial, TDCJ officers prepared to strip search Hope
before transporting him to court. When the guards placed hand restraints on
Hope, he pulled the restraints and key into his cell, covered his cell door with
a mattress, damaged the key by scraping it on the floor, and flushed the key
down the toilet. After removing the mattress and relinquishing the hand
restraints, Hope repeatedly told the guards that he had flushed the key and
did not have it in his possession. Hope repeatedly explained that he took the
key because an officer had withheld his meals the previous day. After
approximately thirty minutes, guards removed Hope from his cell without
the need for force. As officers escorted Hope to the strip search cage, Hope
lay on the ground for about thirty seconds before complying with orders to
stand up and submitting to a strip search.
2
Case: 19-50562 Document: 00516770258 Page: 3 Date Filed: 05/31/2023
No. 19-50562
After the search, Hope received bench warrant clothes but refused to
wear them, tearing the provided shirt. Officers brought a different shirt,
explaining that the garment was merely for transport and that Hope’s
attorneys would provide him with court-appropriate clothing. Hope agreed
to wear the shirt. Officers ordered Hope to approach the body office security
scanning (BOSS) device, which detects metal in human bodies. Hope
initially refused to undergo a BOSS scan but relented after approximately
fifteen minutes. The scan revealed no metal, and officers escorted Hope to
the transport van without further incident. TDCJ personnel did not file a
report regarding problems with Hope’s transport.
Hope arrived at the district court before his trial began, during jury
selection for another matter. However, the United States Marshals did not
permit Hope to enter the courthouse after TDCJ officers reported that Hope
had likely swallowed the key to his hand restraints and needed to be taken to
the hospital for an x-ray. Accordingly, the district court postponed Hope’s
trial. The TDCJ officials then filed a Rule 41 motion to dismiss, which the
court granted, concluding that Hope engaged in contumacious conduct
warranting dismissal of his claims with prejudice. The district court denied
Hope’s motion to alter or amend the judgment, and Hope timely appealed.
II
On appeal, Hope contends that the district court erred in dismissing
his § 1983 suit for failure to prosecute pursuant to Federal Rule of Civil
Procedure 41(b).1 This court typically reviews Rule 41(b) dismissals for
abuse of discretion.2 Dismissal with prejudice is, however, “an extreme
sanction,” reserved for cases in which “the plaintiff’s conduct has
1
See Fed. R. Civ. P. 41(b).
2
See Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992).
3
Case: 19-50562 Document: 00516770258 Page: 4 Date Filed: 05/31/2023
No. 19-50562
threatened the integrity of the judicial process” such that “the court [has] no
choice but to deny that plaintiff its benefits.”3 We affirm dismissals with
prejudice only when (1) “the district court has expressly determined that
lesser sanctions would not prompt diligent prosecution, or the record shows
that the district court employed lesser sanctions that proved to be futile” and
(2) “there is a clear record of delay or contumacious conduct by the
plaintiff.”4 In most cases affirming dismissals with prejudice, moreover, we
have discerned “at least one of three aggravating factors: (1) delay caused by
[the] plaintiff himself and not his attorney; (2) actual prejudice to the
defendant; or (3) delay caused by intentional conduct.”5
A
Before sanctioning a party via dismissal with prejudice, the district
court must “expressly determine[] that lesser sanctions would not prompt
diligent prosecution, or the record [must show] that the district court
employed lesser sanctions that proved to be futile.”6 In other words, the
district court should “find . . . that dismissal with prejudice is the least
sanction which would serve the ends of justice.”7 Hope contends that the
district court abused its discretion by failing to consider adequately lesser
sanctions, such as issuing a warning or permitting Hope to testify by video,
3
McNeal v. Papasan, 842 F.2d 787, 790 (5th Cir. 1988) (internal quotation marks
omitted) (quoting Rogers v. Kroger Co., 669 F.2d 317, 321 (5th Cir. 1982)).
4
Berry, 975 F.2d at 1191.
5
Id. (internal quotation marks omitted) (quoting Price v. McGlathery, 792 F.2d 472,
474 (5th Cir. 1986) (per curiam)).
6
Id.7
McNeal, 842 F.2d at 794.
4
Case: 19-50562 Document: 00516770258 Page: 5 Date Filed: 05/31/2023
No. 19-50562
because this was Hope’s first instance of delay, and Hope had represented
that he would not contribute to further delays.
In its order of dismissal, the district court concluded that lesser
sanctions would not prompt diligent prosecution. The court noted that
assessing fines and costs would not be appropriate because Hope’s attorneys
represent him on a pro bono basis. The court also “considered issuing a
warning” but ultimately found this potential sanction ineffectual. The court
reasoned that Hope’s conduct, was “not the type of behavior that one would
expect from a plaintiff who truly wished to diligently prosecute his case,”
because “[t]he [c]ourt gave Hope what he wanted—a day in court to have his
claims heard—yet he chose to willfully disobey orders and resist authority
despite knowing that his actions might have negative consequences on his
case.”
The district court’s determination that lesser sanctions would not
suffice is not plausible in light of the entire record.8 First, as Hope
emphasizes, this was his first instance of noncompliance. It is undisputed
that both before and after appointment of counsel, Hope vigorously pursued
his claims by conducting substantial discovery, meeting deadlines, and
attending conferences. Thus, we agree with Hope that “the district court
erred by declining to recognize the significant commitment Hope had
displayed in prosecuting his case prior to the morning of trial.” Second,
video taken on the morning of trial, which the district court reviewed prior to
dismissal, depicts Hope’s clear intention to appear before the court and
8
See United States v. Wilcox, 631 F.3d 740, 747 (5th Cir. 2011) (“A district court
abuses its discretion when it makes an error of law or ‘if it bases its decision on a clearly
erroneous assessment of the evidence.’” (quoting United States v. Lipscomb, 299 F.3d 303,
338-39 (5th Cir. 2002))); Anderson v. Bessemer City, N.C., 470 U.S. 564, 573-74 (1985)
(explaining “[i]f the district court’s account of the evidence is plausible in light of the
record viewed in its entirety, the court of appeals may not reverse it”).
5
Case: 19-50562 Document: 00516770258 Page: 6 Date Filed: 05/31/2023
No. 19-50562
further belies the conclusion that Hope did not wish to pursue his case.
Finally, the district court does not appear to have considered Hope’s
explanation for his behavior on the morning of trial. In an affidavit, Hope
explained that his defiant conduct was a response to Hughes Unit guards
withholding his food in retaliation for the lawsuit. These allegations do not
excuse Hope’s behavior. But they nonetheless indicate that, by misbehaving
during transport, Hope meant to antagonize TDCJ officers, not avoid his
trial. Given the unique circumstances surrounding Hope’s nonappearance
at trial, as well as Hope’s repeated assurances that he will not contribute to
further delay, the record does not support the district court’s determination
that lesser sanctions would not spur diligent prosecution. Thus, although the
district court expressly found lesser sanctions inadequate, the court based
this conclusion o a clearly erroneous view of the evidence and thereby abused
its discretion.9
B
We turn next to the other prong of our Rule 41(b) analysis, which
requires (1) “a clear record of delay” or (2) “contumacious conduct by a
plaintiff” to support a dismissal with prejudice.10
1
The district court perceived no clear record of delay warranting
dismissal. Nor do we. Our caselaw recognizes that the requisite
“delay . . . must be longer than just a few months; instead, the delay must be
characterized by significant periods of total inactivity.”11 Delay justifying
9
See Wilcox, 631 F.3d at 747.
10
Berry, 975 F.2d at 1191.
11
Millan v. USAA Gen. Indem. Co., 546 F.3d 321, 326-27 (5th Cir. 2008) (internal
quotation marks omitted) (quoting McNeal v. Papasan, 842 F.2d 787, 791 (5th Cir. 1988)).
6
Case: 19-50562 Document: 00516770258 Page: 7 Date Filed: 05/31/2023
No. 19-50562
dismissal with prejudice is thus usually “egregious and sometimes
outrageous.”12
Here, no such delay occurred. Throughout the litigation, Hope met
all deadlines and appeared at status and pretrial conferences. Regarding the
day of trial, Hope admits that his behavior did slow the transport process that
morning. But, as the TDCJ officials concede, Hope’s outbursts added a mere
forty-five minutes or so to his transport. That minimal lag is nowhere near
the lengthy delays we have required to uphold other dismissals and is not a
“significant period[] of total inactivity.”13 Moreover, the postponement of
Hope’s trial does not give rise to a clear record of delay justifying dismissal.
The parties dispute whether Hope is to blame for the postponement. But any
resulting delay, irrespective of its cause, was too brief to merit dismissal with
prejudice.14 Because trial could have proceeded once security concerns over
the missing handcuff key were allayed, “we cannot assume from the record
before us that [Hope] would have remained unprepared for significant
periods.”15
2
Instead of delay, the district court based its dismissal on contumacious
conduct. We define contumacious conduct as “stubborn resistance to
authority.”16 When assessing a litigant’s contumaciousness, this court has
12
Id. at 327 (internal quotation marks omitted) (quoting Rogers v. Kroger Co., 669
F.2d 317, 321 (5th Cir. 1982)).
13
Millan, 546 F.3d at 327; see also McNeal, 842 F.2d at 791 (“[D]elay which
warrants dismissal with prejudice must be longer than just a few months . . . .”).
14
See McNeal v. Papasan, 842 F.2d 787 at 791 (5th Cir. 1988).
15
Id. (internal quotation marks omitted).
16
Id. at 792 (quoting John v. La., 828 F.2d 1129, 1132 (5th Cir. 1987)); ROA.1439.
7
Case: 19-50562 Document: 00516770258 Page: 8 Date Filed: 05/31/2023
No. 19-50562
also considered “whether the facts expose an obstinate disrespect for the
judicial process.”17
Hope’s case is dissimilar to our contumacious conduct precedent in
which litigants repeatedly refused to comply with court orders or appear at
scheduled proceedings.18 It is undisputed that throughout the litigation,
Hope vigorously pursued his claims, conducting substantial discovery,
meeting all deadlines, and appearing at status and pretrial conferences.
Without a pattern of prior misconduct, Hope’s insubordination on the
morning of trial is the only transgression potentially meriting dismissal.
The district court found that Hope engaged in contumacious conduct
that morning when he “willfully refused to have hand restraints placed on his
person,” “pull[ed] said restraints into his cell,” “destroy[ed] the key by
flushing it down the toilet,” and was generally “uncooperative and disruptive
throughout the entire transport process by repeatedly refusing to comply
with orders.” That behavior clearly demonstrates “stubborn resistance to
authority.”19 The question, then, is whether “the facts expose an obstinate
disrespect for the judicial process.”20 We hesitate to conclude that Hope’s
17
Id.; see also Rogers v. Kroger Co., 669 F.2d 317, 321 (5th Cir. 1982) (noting that our
decisions affirming Rule 41(b) dismissals with prejudice involve “cases where the
plaintiff’s conduct has threatened the integrity of the judicial process . . . leaving the court
no choice but to deny that plaintiff its benefits”).
18
See, e.g., Nottingham v. Warden, Bill Clements Unit, 837 F.3d 438, 443 (5th Cir.
2016) (contumacious conduct occurred when the plaintiff engaged in a pattern of “applying
for IFP status and then paying the filing fee rather than complying with an order to provide
verifiable information in support of the IFP application”); Hornbuckle v. Arco Oil & Gas
Co., 732 F.2d 1233, 1236-37 (5th Cir. 1984) (contumacious conduct occurred when an
attorney moved to continue trial on multiple occasions, then scheduled two overlapping
trials).
19
McNeal, 842 F.2d at 792 (quoting John, 828 F.2d at 1132).
20
Id.8
Case: 19-50562 Document: 00516770258 Page: 9 Date Filed: 05/31/2023
No. 19-50562
intransigence, which occurred entirely within the prison and targeted solely
TDCJ officers, meets this standard. Unlike other Rule 41(b) plaintiffs, Hope
expressed no such resistance toward the court.21 The record supports a
conclusion that Hope fully intended to appear at trial, and did in fact arrive
at the courthouse, but was prevented from entering after TDCJ officers
incorrectly informed court personnel that Hope had swallowed the handcuff
key.
Ultimately, however, we need not decide whether Hope obstinately
disrespected the judicial process. Even if Hope’s conduct was
contumacious, the district court nonetheless failed to consider lesser
sanctions adequately before dismissing Hope’s claims with prejudice.
III
We express no opinion as to whether Hope’s case presents
“aggravating factors” such as intentional delay caused by a party (not his
attorney) or actual prejudice to the opposing party.22 The district court’s
erroneous conclusion regarding the futility of lesser sanctions requires us to
vacate the order of dismissal regardless of any exacerbating circumstances.23
21
See, e.g., Sampson v. Giles, 410 F. App’x 823, 824-25 (5th Cir. 2011) (per curiam)
(unpublished) (concluding that an incarcerated § 1983 plaintiff engaged in contumacious
conduct when he “state[d] multiple times that he was not going to court” and “could not
be transported to court because he refused to accept prison issued toiletries and to submit
to a strip search”).
22
Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992).
23
See id. (explaining that “[w]e will affirm dismissals with prejudice for failure to
prosecute only when . . . the district court has expressly determined that lesser sanctions
would not prompt diligent prosecution”).
9
Case: 19-50562 Document: 00516770258 Page: 10 Date Filed: 05/31/2023
No. 19-50562
IV
Nor do we address Hope’s contentions regarding the effect of
dismissal on his due process rights.24 Our conclusion that dismissal was an
inappropriate sanction here renders moot any due process implications
resulting from that dismissal.
* * *
For the foregoing reasons, we VACATE the order of dismissal and
REMAND for the imposition of a lesser sanction and further proceedings
consistent with this opinion.
24
See Link v. Wabash R. Co., 370 U.S. 626, 632, 633 (1962) (explaining that, in the
context of Rule 41(b) dismissals, “[t]he adequacy of notice and hearing . . . turns, to a
considerable extent, on the knowledge which the circumstances show such party may be
taken to have of the consequences of his own conduct,” but also noting that “the
availability of a corrective remedy such as is provided by Federal Rule of Civil Procedure
60(b)—which authorizes the reopening of cases in which final orders have been inadvisedly
entered—renders the lack of prior notice of less consequence.”).
10