Commercial Litigation and Arbitration

Inherent Power Sanctions: Threats of Violence Suffice for Dismissal, But If Apology Offered, Hearing May Be Required to Assess Genuineness, Credibility of Apologist

Howard v. Martins, 2018 U.S. App. LEXIS 13991 (9th Cir. May 25, 2018):

This appeal raises important questions regarding the right of prisoners to bring civil rights claims against the correctional officers who supervise them, and the obligation prisoners share with all litigants to refrain from conduct that undermines the orderly administration of justice. Timothy Howard appeals from the district court's summary judgment in favor of Defendant correctional officers on Howard's First Amendment retaliation claim, as well as from the district court's dismissal of Officer Furlong from the case. However, while the appeal was pending, Howard wrote a letter to the California Attorney General's Office, dated April 14, 2015 ("April 14 [*2]  letter"), threatening to kill one or more correctional officers if the case was not resolved to his satisfaction. Howard later submitted a letter apologizing, in general terms, for the things he wrote in the April 14 letter. We have jurisdiction under 28 U.S.C. § 1291, and we remand to the district court to determine the credibility of Howard's letter of apology.

Federal courts have inherent power to impose sanctions for abuse of the judicial process, including by ordering "outright dismissal of a lawsuit." Chambers v. NASCO, Inc., 501 U.S. 32, 45 (1991). We have emphasized that "dismissal is a harsh penalty and, therefore, it should only be imposed in extreme circumstances." Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (citations omitted). Before dismissing a case as a sanction for abusive litigation practices, courts must consider several factors, including: "(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions." Anheuser-Busch, Inc. v. Nat. Beverage Distribs., 69 F.3d 337, 348 (9th Cir. 1995).

Defendants argue that Howard's threats constitute sufficiently extreme circumstances to warrant dismissal of his appeal, particularly given that [*3]  Howard, in the past, attacked a correctional officer when he did not receive timely assurances of an out-of-state transfer. For his part, Howard contends the threats he made in his April 14 letter were made "out of frustration," and that his letter of apology renders terminating sanctions inappropriate. Howard also argues that the district court would be better equipped to handle unresolved evidentiary and credibility issues that are relevant to determining whether Howard's threats warrant dismissal.

Threats of violence have no place in the federal courts. A judicial system premised on the fair and orderly administration of justice cannot countenance intimidation tactics from the litigants who seek to vindicate rights within that system. We agree, in principle, that a threatening letter of the type written by Howard is the type of conduct that may constitute "extreme circumstances" justifying the dismissal sanction.

However, Howard has submitted a letter of apology, which at least suggests he understands the gravity of his misconduct, and distinguishes his case from those where prisoner litigants fail to explain, acknowledge, or apologize for threatening behavior. See, e.g., Nelson v. Eaves, 140 F. Supp. 2d 319 (S.D.N.Y. 2001). In his [*4]  letter, Howard writes that he "apologizes to this court for things expressed in violation of the law, and for things not understood as written by means of examples," and asserts that his main point was not to threaten harm, but to highlight the need for reform and accountability in the prisoner grievance process. It is unclear whether this constitutes a genuine recantation of Howard's earlier threats, but it might. If Howard's apology is credible, then a less drastic sanction may be available. If Howard's apology is not credible, then dismissal of the appeal would be warranted.

In light of the district court's superior position vis-à-vis our court to make credibility determinations, we remand for the district court to determine the credibility of Howard's letter of apology in the first instance. The district court may want to hold a hearing and take testimony to assist in making the credibility determination. We will retain jurisdiction over the appeal and decide whether to proceed to the merits after the district court issues its ruling.

Howard's motion to provide supplemental evidence (Dkt. 78) is granted. REMANDED with instructions.


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