Kendricka Sandifer v. Orleans Parish Government, e

Case: 15-30308 Document: 00513316467 Page: 1 Date Filed: 12/21/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 21, 2015
No. 15-30308
Summary Calendar Lyle W. Cayce
Clerk
KENDRICKA SANDIFER,
Plaintiff
v.
MARLIN N. GUSMAN, individually, and in his official capacity; LUCIEN
JOSEPH, individually, and in his official capacity,
Defendants - Appellees
JOHN COURTNEY WILSON,
Appellant
-------------------------------------------
KENDRICA SANDIFER,
Plaintiff
v.
MARLIN N. GUSMAN, Sheriff Orleans Parish,
Defendant - Appellee
JOHN COURTNEY WILSON,
Appellant
--------------------------------------------
KENDRICA SANDIFER,
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No. 15-30308
Plaintiff
v.
MARLIN N. GUSMAN, Sheriff Orleans Parish; MELVIN HOWARD, Major,
in his individual capacity,
Defendants - Appellees
JOHN COURTNEY WILSON,
Appellant
Appeals from the United States District Court
for the Eastern District of Louisiana
Nos. 2:11-CV-1798, 2:12-CV-2988, 2:13-CV-259
Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Appellant John Courtney Wilson attempted to represent Plaintiff
Kendrica Sandifer in multiple suits brought against members of the Orleans
Parish Sheriff’s Office. The district court denied Wilson’s motion to enroll as
co-counsel in the original suit and later sanctioned Wilson for violating court
orders after Wilson subsequently enrolled as co-counsel in several related
suits. On appeal, Wilson challenges the district court’s orders denying the
motion and sanctioning Wilson. For the following reasons, we AFFIRM the
orders of the district court.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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I. FACTUAL AND PROCEDURAL BACKGROUND
On July 25, 2011, Kendrica Sandifer filed a complaint—before district
court judge Carl J. Barbier—alleging violations of Louisiana and federal law,
including a Title VII sexual harassment claim, against several members of the
Orleans Parish Sheriff’s Office in their individual and official capacities
(Sandifer I). During this (and subsequent) proceedings, Sandifer was
represented by attorney Jerry Settle. Trial in Sandifer I was ultimately set for
November 13, 2012.
On September 14, 2012, Defendants moved for summary judgment. On
September 16, 2012, Sandifer moved to enroll John Courtney Wilson as co-
counsel in order to assist Settle with his “first federal matter.” The district
court denied the motion to enroll, noting that Wilson “ha[d] apprised the Court
that he has a conflict with the current trial date.” The trial was subsequently
continued until June 10, 2013, for an unrelated reason, and on October 19,
2012, Sandifer again moved to enroll Wilson as co-counsel. The district court
denied the second motion “[b]ased on the Court’s previous experience with Mr.
Wilson, and Mr. Wilson’s candid admission to the Court in a similar matter
that he is not competent.” On December 14, 2012, the district court dismissed
without prejudice Sandifer’s Title VII claim in order for her to exhaust her
administrative remedies and to receive a right-to-sue letter from the Equal
Employment Opportunity Commission (EEOC). All of the other claims were
dismissed with prejudice.
On December 17, 2012, Wilson and Settle, jointly listed as counsels for
Sandifer, filed a new complaint—before district court judge Ivan L.R.
Lemelle—alleging Sandifer’s sexual harassment claim and attached the EEOC
right-to-sue letter (Sandifer II). The civil cover sheet noted that the complaint
was related to Sandifer I, and Sandifer II was transferred to district court
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judge Barbier who had presided over Sandifer I. The district court ordered
Wilson to show cause for why he should not have been sanctioned for
disregarding the court’s previous order in Sandifer I. At the show cause
hearing, Wilson stated that he filed the complaint because of an impending
filing deadline and because he was unable to contact Settle. Expressing
concern that Wilson was attempting an “end run around [the Sandifer I order
denying Wilson’s motion to enroll as co-counsel] by filing another suit,” the
district court ordered that Wilson be stricken from the record as counsel for
Sandifer but did not impose a monetary sanction. 1
On February 11, 2013, Settle filed Sandifer’s third complaint—before
district court judge Lemelle—alleging retaliatory discharge from her
employment with the Sheriff’s Office (Sandifer III). The civil cover sheet noted
that Sandifer III related to both Sandifer I and Sandifer II. On September 7,
2013, Wilson moved to enroll as co-counsel for Sandifer III, and a magistrate
judge granted the motion. Because it involved similar subject matter as
Sandifer I and Sandifer II, Sandifer III was subsequently transferred to
district court judge Barbier who had presided over Sandifer I and Sandifer II.
The district court thereafter consolidated all three cases.
On December 17, 2013, the district court ordered Wilson to show cause
“why [he] should not be sanctioned and terminated from the case for
disregarding the Court’s orders in [Sandifer I] and [Sandifer II].” Wilson
stated that he did not intentionally disregard the court’s order because he
presumed a decision had been made not to transfer it to the original district
court judge and offered to withdraw to cure the problem. At the show cause
hearing on January 15, 2014, the district court noted that Sandifer III was
1Wilson filed petitions for writs of mandamus in the Fifth Circuit from Sandifer I and
Sandifer II, both of which were denied.
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originally “marked deficient by the clerk’s office” because Wilson had
submitted the complaint with only Settle’s signature. The district court also
noted that the Sandifer III complaint, while signed and submitted by Settle,
was written by Wilson. Wilson stated that he “didn’t sign the original
pleading” because “[he] anticipated this matter would be transferred to [this]
court.” During the hearing, the district court accepted Wilson’s oral motion to
withdraw as counsel of record. The district court also found that Wilson had
“blatantly violated previous orders of this court” and that Wilson had violated
his duty of candor. 2 The district court ordered that Wilson was prohibited from
drafting documents or acting as a “de facto” attorney for Sandifer and imposed
a monetary sanction of $1,000 on Wilson. 3
On March 3, 2015, the district court entered final judgment in favor of
Defendants after a bench trial. On April 2, 2015, Wilson appealed the order
denying his motion to enroll in Sandifer I, the order striking him as the
attorney of record pursuant to the show cause order in Sandifer II, and the
order finding that Wilson violated past orders and his duty of candor and
sanctioning Wilson $1,000 in Sandifer III.
II. SANDIFER I MOTION AND SANDIFER II SANCTION
On appeal, Wilson alleges that the district court committed three errors:
(1) denying Wilson’s motion to enroll as co-counsel in Sandifer I; (2) striking
Wilson as co-counsel in Sandifer II; and (3) sanctioning Wilson $1,000 for
violating his duty of candor and for violating previous orders of the district
2 The district court noted at the hearing that Wilson had discussed with a magistrate
judge about scheduling a settlement conference in Sandifer III, but during that discussion,
Wilson had not informed the magistrate judge regarding the previous Sandifer matters or
Wilson’s removal from those matters.
3 On July 10, 2014, the district court granted Sandifer’s motion to discharge Settle as
her attorney and granted the motion to enroll Randy Dukes as the counsel of record. Dukes
represented Sandifer through the remainder of the consolidated action.
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court in Sandifer III. However, Wilson fails to adequately brief the first two
issues in his initial brief. Wilson only cursorily references two authorities in
support of his argument on the first issue and fails to identify relevant
authority supporting the majority of his conclusory arguments. See United
States v. Scroggins, 599 F.3d 433, 446–47 (5th Cir. 2010) (stating that “[it] is
not enough to merely mention or allude to a legal theory,” but that a party
must “clearly identify[]” its theory and identify the relevant authorities
supporting that theory); Fed. R. App. P. 28(a)(8)(A) (requiring the initial brief
to contain “[Wilson’s] contentions and reasons for them, with citations to the
authorities and parts of the record on which [Wilson] relies”). Moreover,
Wilson fails to reference any authority supporting his arguments on the second
issue. See In re Bouchie, 324 F.3d 780, 786 (5th Cir. 2003) (“As [appellant]
cites no authority for this proposition, it is not adequately briefed and is
therefore waived.”). Wilson has therefore waived these issues on appeal.
Scroggins, 599 F.3d at 446. 4
III. SANDIFER III SANCTION
The only issue adequately briefed on appeal is the third issue: whether
the district court erred in sanctioning Wilson, including a $1,000 monetary
sanction, for his actions relating to Sandifer III. As Wilson correctly notes, it
appears the district court exercised its inherent authority in sanctioning him.
See Blanco River, L.L.C. v. Green, 457 F. App’x 431, 438 (5th Cir. 2012) (per
curiam) (unpublished) (analyzing the sanctions as “imposed pursuant to the
4 Considering Wilson does not appeal the district court’s final judgment dismissing
with prejudice Sandifer’s underlying consolidated action, the first two issues are also mooted
because there is no longer a “live” issue regarding Wilson’s enrollment as co-counsel. See Fla.
Bd. of Bus. Regulation v. NLRB, 605 F.2d 916, 918 (5th Cir. 1979) (“An action becomes moot
when ‘the issues presented are no longer “live” or the parties lack a legal cognizable interest
in the outcome.’” (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969))). Moreover, Wilson
fails to cite any authority for his argument that the alleged invalidity of the Sandifer I order
affects our analysis of the Sandifer III sanction. See In re Bouchie, 324 F.3d at 786.
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court’s inherent authority” when the record indicated that Federal Rule of Civil
Procedure 11 was not the basis for the sanctions). “We review sanctions
imposed under a court’s inherent authority for abuse of discretion.” Elliott v.
Tilton, 64 F.3d 213, 217 (5th Cir. 1995).
As the Supreme Court has recognized, such inherent power is “governed
not by rule or statute but by the control necessarily vested in courts to manage
their own affairs so as to achieve the orderly and expeditious disposition of
cases.” Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) (quoting Link v.
Wabash R. Co., 370 U.S. 626, 630–31 (1962)). “A court must, of course, exercise
caution in invoking its inherent power, and it must comply with the mandates
of due process, both in determining that the requisite bad faith exists and in
assessing fees.” Id. at 50. Here, the district court complied with due process
because it ordered Wilson to show cause why he should not be sanctioned for
disregarding previous orders, allowed Wilson to file a response, and held a
hearing before sanctioning Wilson. 5 See Am. Airlines, Inc. v. Allied Pilots
Ass’n, 968 F.2d 523, 530 (5th Cir. 1992) (“[Due process] requires adequate
notice and an opportunity to be heard.”); see also Hazeur v. Keller Indus., No.
92-3488, 1993 WL 14973, at *6 (5th Cir. Jan. 11, 1993) (per curiam)
(unpublished) (holding that due process rights were not violated by the district
court failing to expressly articulate that it was imposing sanctions pursuant to
its inherent power).
“In order to impose sanctions against an attorney under its inherent
power, a court must make a specific finding that the attorney acted in ‘bad
faith.’” Chaves v. M/V Medina Star, 47 F.3d 153, 156 (5th Cir. 1995); see also
5 Because the district court did not abuse its discretion in sanctioning Wilson for
violating past orders, we need not address whether the district court provided improper
notice of its alternative reason for imposing sanctions, Wilson’s alleged violation of the duty
of candor.
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In re Yorkshire, LLC, 540 F.3d 328, 332 (5th Cir. 2008). However, “[w]hen bad
faith is patent from the record and specific findings are unnecessary to
understand the misconduct giving rise to the sanction, the necessary finding
of ‘bad faith’ may be inferred.” Blanco River, 457 F. App’x at 438–39 (quoting
In re Sealed Appellant, 194 F.3d 666, 671 (5th Cir. 1999)). “A court abuses its
discretion when its finding of bad faith is based on an erroneous view of the
law or a clearly erroneous assessment of the evidence.” Crowe v. Smith, 261
F.3d 558, 563 (5th Cir. 2001). If the district court applied the correct legal
standard in making the finding, then the finding will not be set aside unless
“the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” Anderson v. City of Bessemer
City, 470 U.S. 564, 573 (1985) (quoting United States v. U.S. Gypsum Co., 333
U.S. 364, 395 (1948)). Accordingly, “[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 even though convinced that had it been sitting as
the trier of fact, it would have weighed the evidence differently.” Anderson,
470 U.S. at 573–74.
Here, we cannot say the district court abused its discretion in
sanctioning Wilson for violating the court’s previous orders. Violating those
orders constitutes bad faith. See Chambers, 501 U.S. at 57 (“As long as the
party receives an appropriate hearing, . . . the party may be sanctioned for
abuses of process occurring beyond the courtroom, such as disobeying the
court’s orders.” (citation omitted)). And based on the record as a whole, we
cannot say that the district court made a mistake in finding that Wilson
violated those orders. Indeed, while Wilson contends that “[t]here was no
knowledge on [his part] that enrolling in [Sandifer III] when it was pending
before another [judge of the district court] was not authorized,” the district
court had already admonished Wilson for a similar act in Sandifer II. After
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Wilson filed Sandifer II—noting in the civil cover sheet that Sandifer I was
related—Sandifer II was transferred to the district court judge that presided
over Sandifer I. The district court then struck Wilson from the record as
counsel in Sandifer II, expressly stating that “it appears to [the district court]
that [Wilson] clearly attempted to and did make an end run around [the
Sandifer I order] by filing another suit.” Subsequently, Wilson attempted to
obscure his involvement by filing Sandifer III with the complaint signed only
by Settle, but the complaint “was marked deficient” because it was signed and
filed by different attorneys. Settle re-filed Sandifer III, and Wilson then moved
to enroll as co-counsel when “[Wilson] presumed that there had been a decision
made not to transfer it [to the district court judge that handled the previous
actions].” Each of Sandifer’s actions involved related claims by Sandifer
arising out of her previous employment with the Sheriff’s Office, and the
district court ultimately required Settle to file a consolidated complaint. Based
on the record as a whole, “the district court’s account of the evidence is
plausible,” Anderson, 470 U.S. at 573–74, and therefore the court did not abuse
its discretion in sanctioning Wilson for his bad faith in violating the past
orders. 6
Moreover, the Sandifer III sanction is appropriate in scope. “[T]he
sanctioning court must use the least restrictive sanction necessary to deter the
inappropriate behavior.” In re First City Bancorportion of Tex. Inc., 282 F.3d
864, 867 (5th Cir. 2002). Here, the district court had already sanctioned Wilson
in Sandifer II for violating a previous order by striking Wilson as counsel of
record for Sandifer II. Because striking Wilson as counsel was not sufficient
6In his reply brief, Wilson contends for the first time that the Sandifer III sanctions
should be vacated because of the alleged invalidity of the Sandifer I order. However,
“[a]rguments raised for the first time in a reply brief are waived.” Dixon v. Toyota Motor
Credit Corp., 794 F.3d 507, 508 (5th Cir. 2015).
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to deter Wilson from violating the district court’s orders, the court did not
abuse its discretion in imposing an additional monetary sanction of $1,000
when Wilson undertook similar behavior in Sandifer III. See Bancorporation,
282 F.3d at 867 (holding that the bankruptcy court did not abuse its discretion
in imposing a monetary sanction of $25,000 after counsel disregarded the
court’s previous admonishments). Moreover, considering Wilson attempted to
obfuscate his involvement in Sandifer III by originally filing the complaint
with Settle’s signature, the district court did not abuse its discretion in further
prohibiting Wilson “from drafting documents in this case and from acting as a
de facto attorney for [Sandifer].” See Nat. Gas Pipeline Co. of Am. v. Energy
Gathering, Inc., 86 F.3d 464, 467 (5th Cir. 1996) (requiring the court to use
“less restrictive measure[s]” only “[i]f there is a reasonable probability that a
lesser sanction will have the desired effect”). Thus, the district court did not
abuse its discretion by sanctioning Wilson for violating the court’s previous
orders.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the orders of the district court.
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