Bates Thompson v. Independent School

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 16 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
MARY JOANN BATES THOMPSON,
Plaintiff-Appellee,
v. No. 99-6295
(D.C. No. 98-CV-731)
INDEPENDENT SCHOOL DISTRICT (W.D. Okla.)
NO. I-004 OF COMANCHE
COUNTY, OKLAHOMA, a/k/a
Geronimo Public Schools; CINDY
KRIZ; DONALD MCCAIG; LINDA
PENDERGRAPH; JESSE NASH;
SHERRY PENLAND,
Defendants-Appellants.
ORDER AND JUDGMENT *
Before TACHA , EBEL , and LUCERO , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Defendants appeal from the district court ’s imposition of sanctions against
their counsel, Bill V. Wilkinson, in this civil rights case. After several proposed
joint pretrial orders were returned by the court for failure to follow local rules and
because of Wilkinson’s attempts to add an affirmative defense, witnesses and
exhibits not included in the first pretrial order, Wilkinson filed a motion to
reconsider the district court’s order striking the additional material from the joint
pretrial order. The district court referred the motion to the magistrate judge for
hearing and directed that the magistrate judge recommend appropriate sanctions.
After the hearing, the magistrate judge filed his findings and recommendation,
recommending that the motion to reconsider be denied and sanctions of $4,000.00
be imposed on Wilkinson, but not on his clients. The district court adopted the
magistrate judge’s findings and recommendations.
We have jurisdiction over this appeal by virtue of 28 U.S.C. § 1291. Our
review of the district court ’s order imposing sanctions is for abuse of discretion
only. See Jones v. Thompson , 996 F.2d 261, 264 (10th Cir. 1993). The court’s
discretion “must not be viewed in isolation,” but in “the totality of the
circumstances, including the specific case under review [and] the total
management problems for courts.” In re Baker (Mulvaney v. Rivair Flying Serv.,
-2-
Inc.) , 744 F.2d 1438, 1440 (10th Cir. 1984). Here, the magistrate judge
recommended that sanctions be imposed against Wilkinson pursuant to both Fed.
R. Civ. P. 16(f) and the court’s inherent powers based on Wilkinson’s conduct,
specifically his blaming opposing counsel for his own errors, his refusal to sign a
complying pretrial order before the hearing and his statement in open court that
he was not going to obey the magistrate judge’s order at the hearing to sign a
complying pretrial order. The magistrate judge concluded that this conduct
demonstrated bad faith on Wilkinson’s part, and that his conduct had disrupted
the court. The district court , in adopting the magistrate judge’s findings and
recommendation, also noted that Wilkinson’s conduct threatened the trial setting
in the case.
On appeal, Wilkinson argues that a) the magistrate judge was predisposed
to recommend sanctions, b) the magistrate judge’s finding that Wilkinson acted in
bad faith ignores the facts that Wilkinson had filed a motion to reconsider and had
been granted an extension of time within which to file a proper pretrial order,
c) the trial court failed to conduct a de novo review of the magistrate judge’s
findings and recommendation, and d) the rules under which the sanctions were
imposed are narrow and the facts do not support a finding that Wilkinson violated
them. After careful review of the record on appeal and Wilkinson’s arguments,
-3-
we conclude that the district court did not abuse its discretion or otherwise err in
imposing sanctions against Wilkinson, and affirm the district court ’s ruling.
Wilkinson first argues that the magistrate judge demonstrated bias against
him, as evidenced by the magistrate judge’s tone of voice at the hearing, 1
and by
four specifically alleged examples. Upon review of the transcript of the hearing
in light of the balance of the record on appeal, we disagree with Wilkinson’s
characterization of the magistrate judge’s treatment as bias. 2
Wilkinson also
challenges the district court ’s finding that his conduct evidenced bad faith. His
arguments on this point demonstrate a continued attempt to blame opposing
counsel for his errors, and mischaracterize the issues at hand, the district court’s
orders, and the basis for the magistrate judge’s finding of bad faith.
Wilkinson argues that the district court failed to perform a de novo review
of those portions of the magistrate judge’s findings and recommendations to
1
The hearing before the magistrate judge on Wilkinson’s motion to
reconsider was taped. Wilkinson has provided the court with a transcription of
that tape, but the tape was not included in his appendix.
2
In one example of alleged bias, Wilkinson claims that the magistrate
judge’s quotation of the hearing transcript is in error as to Wilkinson’s answer to
the question whether Wilkinson is going to comply with the magistrate judge’s
order to submit a complying pretrial order. Wilkinson submits a transcript in
which his answer is directly at odds with that quoted by the magistrate judge in
his findings and recommendation. However, we cannot review the basis of this
allegation because, as noted above, Wilkinson has not provided this court with a
copy of the tape of the hearing. See Scott v. Hern , 216 F.3d 897, 912 (10th Cir.
2000) (stating court must affirm where evidentiary record insufficient to permit
assessment of claims of error).
-4-
which he objected because its order does not state that it reviewed either a tape of
the hearing or a transcript. “We assume that the district court performed its
review function properly in the absence of evidence to the contrary.” Green v.
Branson , 108 F.3d 1296, 1305 (10th Cir. 1997). Wilkinson offers no evidence of
the district court ’s alleged failure to conduct the proper de novo review. Finally,
Wilkinson argues that Fed. R. Civ. P. 16(f) is narrow in scope and does not
encompass his initial error in omitting material from the pretrial order. We need
not resolve this point because this argument ignores the fact that the court also
based its imposition of sanctions on its inherent powers.
The judgment of the United States District Court for the Western District of
Oklahoma is AFFIRMED.
Entered for the Court
David M. Ebel
Circuit Judge
-5-