Timothy Howard v. M. Harris ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 7 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIMOTHY HOWARD, No. 15-15820
Plaintiff-Appellant, D.C. No. 1:12-cv-01875-RRB
v.
M. HARRIS and J. MARTINS, ORDER*
Defendants-Appellees,
and
C. LANE; et al.,
Defendants.
Appeal from the United States District Court
for the Eastern District of California
Ralph R. Beistline, District Judge, Presiding
Argued and Submitted May 15, 2018
San Francisco, California
Before: WALLACE and N.R. SMITH, Circuit Judges, and BATTS, ** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Deborah A. Batts, United States District Judge for the
Southern District of New York, sitting by designation.
Timothy Howard appeals from the district court’s summary judgment in his
42 U.S.C. § 1983 action alleging retaliation by defendant correctional officers. We
have jurisdiction under 28 U.S.C. § 1291, and we dismiss the appeal.
I.
On April 14, 2015, approximately one week after the district court entered
summary judgment against him, Howard wrote a letter to the Deputy Attorney
General then assigned to the case in which he threatened to kill one or more
correctional officers if the case was not resolved to his satisfaction. The letter
stated, in part:
“[I]f this case is not reversed as required, or settled by CDCR
[California Department of Corrections and Rehabilitation] as it
should, I do intend on killing one or more of CDCR employees once
I’ve made my final peace and allowed the courts and representatives
to handle their obligations. . . .
“Violence is not the only solution, yet it’s the only thing these people
seem to understand and it’s a disgrace to see good men and women
who work in prison caught in unnecessary conflict. . . .
“[C]learly I desire not to harm, injure or kill anyone, but will not
avoid it either if it’s required. . . .”
Letter dated April 14, 2015, ECF No. 31, Exh. A.
On November 3, 2015, Defendants moved to dismiss the appeal based on the
threats of violence Howard expressed in his April 14 letter. Howard opposed the
motion and subsequently filed a letter dated January 2, 2018 in which he wrote that
2
he “apologizes to this court for things expressed in violation of the law, and for
things not understood as written by means of examples.” ECF No. 78, Exh. A at 1.
After oral argument on appeal, we issued an order explaining that “a
threatening letter of the type written by Howard is the type of conduct that may
constitute ‘extreme circumstances’ justifying the dismissal sanction.” Order filed
May 25, 2018 at 3, ECF No. 89. However, we concluded that Howard’s January 2
apology letter, if credible, may support a sanction less drastic than dismissal. We
ultimately remanded for the district court “to determine the credibility of Howard’s
letter of apology in the first instance,” and retained jurisdiction over the appeal. Id.
at 4.
On remand, the district court held an evidentiary hearing on the credibility of
Howard’s apology letter, at which Howard testified. The district court found that
although Howard was sorry for writing the April 14 letter because it raised the
possibility his appeal might be dismissed, “[Howard] is not sorry he made the
threats.” District Ct. Findings on Remand, ECF No. 90 at 7. The district court
explained that during the hearing, Howard never fully acknowledged making any
threat at all, let alone repudiate and apologize for his misconduct. The court
concluded “[a]bsent [Howard’s] admission that he made threats and absent an
understanding of why the letter has not, in fact, been ‘blown out of proportion,’ the
Court cannot conclude that he is sorry for making the threats.” Id. at 8.
3
II.
“Dismissal under a court’s inherent powers is justified in extreme
circumstances, in response to abusive litigation practices, and to insure the orderly
administration of justice[.]” Halaco Eng’g Co. v. Costle, 843 F.2d 376, 380 (9th
Cir. 1988) (citation omitted); see Chambers v. NASCO, Inc., 501 U.S. 32, 44–45
(1991) (“[O]utright dismissal of a lawsuit . . . is a particularly severe sanction, yet
is within the court’s discretion.”). Before dismissing a case as a sanction, we must
consider five factors: “(1) the public’s interest in expeditious resolution of
litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the
defendants; (4) the public policy favoring disposition of cases on their merits; and
(5) the availability of less drastic alternatives.” Yourish v. Cal. Amplifier, 191 F.3d
983, 990 (9th Cir. 1999).
III.
We conclude that dismissal is appropriate under the extreme circumstances
presented here. Of the five relevant factors, only the fourth factor—the public
policy favoring disposition of cases on their merits—weighs against dismissal. See
Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). The other factors favor
dismissal, some strongly so.
As to the first two factors, Howard’s threats have delayed resolution of this
appeal (factor one) and interfered with the court’s need to manage its docket
4
(factor two). See Pagtalunan, 291 F.3d at 642 (“The public’s interest in
expeditious resolution of litigation always favors dismissal.”). In addition,
Howard’s threats present a risk of prejudice to the defendants (factor three)
because they are intended to coerce the CDCR to settle with him or to take steps to
ensure he prevails on appeal. See Anheuser-Busch, Inc. v. Natural Beverage
Distribs., 69 F.3d 337, 353–54 (9th Cir. 1995) (“A defendant suffers prejudice if
the plaintiff’s actions . . . threaten to interfere with the rightful decision of the
case.”). Howard’s threats cannot easily be dismissed as mere talk—he has a
documented history of threatening violence against correctional officers, and in
2009, he stabbed a correctional officer with intent to kill.
Finally, we have considered the availability of less drastic sanctions (factor
five), such as a reprimand or contempt, but conclude less severe measures are
inappropriate. When we remanded the case, we took seriously the possibility that
Howard understood the gravity of his actions and was genuinely remorseful. If in
fact Howard were sorry, then a less drastic sanction may have been available.
However, the district court, after holding an evidentiary hearing and reviewing the
record, determined that Howard’s apology was not credible. “We defer to the
district court when it makes a credibility determination.” Hoffman v. Capital
Cities/ABC, Inc., 255 F.3d 1180, 1188 (9th Cir. 2001). Here, the record supports
5
the district court’s finding that Howard is not genuinely sorry for making the
threats. Accordingly, we conclude dismissal is appropriate.
IV.
Howard argues that dismissal would violate due process because his threats
of violence do not threaten to interfere with the rightful decision of the case. We
disagree. As the April 14 letter makes clear, and as the district court found on
remand, Howard’s threats to kill one or more correctional officers were intended to
coerce the CDCR into settling the case or taking some other action that would
result in a resolution favorable to Howard. This is not a case where the sanctioned
conduct relates “only to a peripheral matter not at issue in the suit.” Phoceene
Sous-Marine, S.A. v. U.S. Phosmarine, Inc., 682 F.2d 802, 806 (9th Cir. 1982).
Rather, Howard’s threats are aimed specifically at increasing the likelihood the
appeal would be resolved in his favor. Therefore, there is a nexus between
Howard’s conduct and the merits of the case such that imposition of a dismissal
sanction does not violate due process. See Halaco Eng’g Co., 843 F.2d at 381.
V.
Dismissal is a severe sanction. Yet, Howard’s conduct—threatening to kill
correctional officers if the case was not resolved to his satisfaction—was beyond
the pale. Even when given the opportunity to repudiate what he had done, Howard
could not bring himself to unequivocally admit to, or apologize for, his actions.
6
Therefore, in light of the seriousness of the misconduct at issue, and for the reasons
explained above, we conclude dismissal is the appropriate sanction. Accordingly,
we GRANT Defendants’ motion to dismiss the appeal.1
APPEAL DISMISSED.
1
Defendants’ motion to provide supplemental evidence is DENIED as moot.
7