Commercial Litigation and Arbitration

Inherent Power Sanctions — Failure to Provide Opportunity to Be Heard Requires Vacatur of Sanction (Dismissal of Prisoner Action after Shard of Glass Found in Envelope to Court But Prisoner Denies Responsibility)

Birdo v. Urbanosky, 2015 U.S. App. LEXIS 18632 (7th Cir. Oct. 23, 2015):

Kevin Birdo, an Illinois inmate, broke a finger in August 2012. By his account the prison medical staff waited three weeks before treating the injury and then, after acknowledging that surgery was needed because the delay had caused the break to heal improperly, put off the surgery for nearly seven weeks while he waited in pain. As a result, Birdo says, he suffers from painful arthritis and cannot bend the finger. He filed this action under 42 U.S.C. § 1983 claiming that the defendant physicians [*2]  and administrators were deliberately indifferent to a serious medical need in violation of the Eighth Amendment. The district court screened Birdo's complaint and allowed the action to proceed, see 28 U.S.C. § 1915A, and for a year the litigation proceeded without incident. Without warning or notice to Birdo, however, the district court dismissed the suit with prejudice as a sanction after a shard of mirror glass was found in one of Birdo's mailings to the court. Birdo moved for reconsideration, explicitly denying responsibility for the glass in the envelope. The court denied that motion without explanation, and Birdo then filed this appeal. We conclude that the court abused its discretion.


On appeal Birdo argues that before dismissing the case, the district court should have conducted a hearing to determine if, in fact, he was responsible for the glass being sent to the court. We review a sanction imposed under a district court's inherent authority for abuse of discretion. Salmeron v. Enter. Recovery Sys., Inc., 579 F.3d 787, 793 (7th Cir. 2009).

Before a court invokes its inherent authority to impose sanctions, the court must provide [*5]  the affected party with due process by giving notice that sanctions may be imposed and allowing the party to be heard. See Chambers v. NASCO, Inc., 501 U.S. 32, 50, 111 S. Ct. 2123, 115 L. Ed. 2d 27 (1991); Larsen v. City of Beloit, 130 F.3d 1278, 1286-87 (7th Cir. 1997); Koehl v. Bernstein, 740 F.3d 860, 862-63 (2d Cir. 2014). We have said explicitly that a court's "inherent power to sanction is to be exercised by means of a rule to show cause or similar procedure, rather than by the sudden imposition of sanctions with no opportunity to respond." Larsen, 130 F.3d at 1286-87. An opportunity for the party to be heard is unnecessary only if sanctionable conduct is apparent from the record and a hearing (or other opportunity to be heard) would not assist the court. Compare Philos Techs., Inc. v. Philos & D, Inc., Nos. 12-3446, et al., 2015 U.S. App. LEXIS 16812, 2015 WL 5562178, at *10-11 (7th Cir. Sept. 22, 2015) (vacating sanctions since "murky record" on disputed issues did not support imposition of sanctions), with Kapco Mfg. Co. v. C & O Enters., Inc., 886 F.2d 1485, 1495 (7th Cir. 1989) (explaining that if "sanctionable conduct occurred in the presence of the court, there are no issues that a hearing could illuminate and hence the hearing would be pointless"). But where there are contested factual issues, the court must offer an opportunity to be heard and must resolve factual disputes. See Philos Techs., 2015 U.S. App. LEXIS 16812, 2015 WL 5562178, at *10; Johnson v. Cherry, 422 F.3d 540, 549 (7th Cir. 2005).

Birdo's case illustrates the "fundamental problem" with imposing sanctions without the required notice and opportunity to be heard: Only after the district court [*6]  had dismissed his case with prejudice did Birdo even have a chance to deny involvement in sending the shard of glass. See Johnson, 422 F.3d at 551. And even then--contrary to the defendants' contention--Birdo did not receive a hearing in any meaningful sense because the district court, without any further inquiry, ignored Birdo's sworn denial of involvement. In the face of that denial, the district court could not simply assume, as it did, that Birdo was the one who placed the glass in the envelope. Rather, a hearing, including the taking of evidence if necessary, was essential to resolve whether he was responsible, for his involvement is not apparent from the record. Under these circumstances the court abused its discretion by sanctioning Birdo without giving him an opportunity to be heard and without first determining that he was responsible for sending the glass. As Birdo points out, he was not the last person to handle the envelope with his motion before it was delivered to the postal service, and whether or not the court thought it likely that someone else had tampered with the envelope, the court could not rely on speculation to resolve the matter.

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