Bingman v. Ward, 95-36291

• Decision Date: 09 October 1996
• Docket Number: No. 95-36291,95-36291
• Citation: 100 F.3d 653
• Parties: James Dean BINGMAN, Plaintiff-Appellee, v. Daniel WARD, Prison Dentist; James Mickey Gamble, Warden; Don Sullivan, Infirmary Supervisor; Wade Heimbough, Head Nurse Infirmary, Defendants-Appellants
• Court: U.S. Court of Appeals — Ninth Circuit

Page 653

100 F.3d 653

James Dean BINGMAN, Plaintiff-Appellee, v. Daniel WARD, Prison Dentist; James Mickey Gamble, Warden; Don Sullivan, Infirmary Supervisor; Wade Heimbough, Head Nurse Infirmary, Defendants-Appellants.

No. 95-36291

United States Court of Appeals, Ninth Circuit

Argued and Submitted October 9, 1996

Decided: November 15, 1996.

David L. Ohler, Montana Department of Corrections, Helena, Montana for the defendants-appellants.

Jeffrey T. Renz, Montana Defender Project, University of Montana School of Law, Missoula, Montana for the plaintiff-appellee.

Appeal from the United States District Court for the District of Montana, Leif B. Erickson, Magistrate Judge, Presiding. D.C. No. CV-93-00063-LBE.

Before: BROWNING, D.W. NELSON, and FERNANDEZ, Circuit Judges.

FERNANDEZ, Circuit Judge:

James D. Bingman is a prisoner in the Montana State Prison. He brought this action against the prison dentist, Daniel Ward, and other employees of the prison (collectively "prison officials") because, he claimed, they were not giving him proper dental care. He asserted that his constitutional rights had been violated and sued for damages and injunctive relief. See 42 U.S.C. 1983. The magistrate Judge issued a preliminary injunction and later determined that the prison officials had not abided by his order. He found them in contempt and imposed sanctions. This appeal ensued. We have determined that the magistrate Judge lacked jurisdiction. We, therefore, vacate the order and remand for further proceedings.

BACKGROUND

When Bingman filed this action seeking relief from the prison officials' indifference to his dental needs, the parties agreed that the case could proceed before a magistrate Judge and that any appeal could be taken directly to this Court. See 28 U.S.C. 636(c). After receiving evidence, the magistrate Judge determined that there were serious problems regarding dental care at the prison and then issued a somewhat ambiguous preliminary injunction. That injunction told the prison officials to "expeditiously provide" Bingman with "necessary dental care," and to "continue to provide [him] with dental services that may be medically indicated." Emergency needs were to be attended to within seven days, while non-urgent needs were to be attended to within 60 days. However, the officials were also told that they were not to provide services to Bingman in a manner that helped him "at the expense of inmates with higher priority needs or ranking on the waiting lists." The prison officials were also ordered to present a proposal to eliminate the deficiencies in their prison's dental care system.

Bingman was not satisfied with the service he was given, nor was he satisfied with the prison officials' compliance with the other terms of the order. He asked that the prison officials be held in contempt. Ultimately, the magistrate Judge agreed that they should be and he then imposed monetary sanctions upon them. He directed that the prison officials pay the sum of $1,450 to the Clerk of the Court because they had not submitted a plan within the allotted time. He further ordered them to pay $500 to Bingman because they had not given him the expeditious care required by the order.

The magistrate Judge did not indicate that the sanctions could be avoided by some further action on the part of the officials, nor did he indicate that they were compensatory. Rather, he declared that they were "to punish [the prison officials] for failing to timely and expeditiously comply with the terms . . . of the injunction, and, further, to encourage adherence to this or other orders of [the] Court in the future . . . ."

The prison officials appealed. They contend that the magistrate Judge lacked jurisdiction to hold them in contempt and that he should not, in any event, have done so. We agree with their first contention. We need not, and will not, reach the second contention because that must await a proper development of the matter in a proper forum.

JURISDICTION

Before we proceed further, we must address the question of our own jurisdiction. It is clear that we do not have jurisdiction to hear interlocutory appeals from civil contempt orders entered against parties to litigation. See Portland Feminist Women's Health Ctr. v. Advocates for Life, Inc., 859 F.2d 681, 687 (9th Cir. 1988); Union of Prof'l Airmen v. Alaska Aeronautical Indus., Inc., 625 F.2d 881, 883 (9th Cir. 1980). However, we do have jurisdiction to hear appeals from criminal contempt orders because they are "appealable when entered." Prof'l Airmen, 625 F.2d at 883. Therefore, we must decide whether the order before us was one for civil contempt or one for criminal contempt.

As we have said: "Civil contempt is a refusal to do an act the court has ordered for the benefit of a party; the sentence is remedial. Criminal contempt is a completed act of disobedience; the sentence is punitive to vindicate the authority of the court." In re Sequoia Auto Brokers Ltd., Inc., 827 F.2d 1281, 1283 n.1 (9th Cir. 1987). While that explication of the dichotomy between civil and criminal contempt is helpful, it is not quite complete. The Supreme Court has suggested that a fine "is remedial when it is paid to the complainant, and punitive when it is paid to the court . . . ." Hicks v. Feiock, 485 U.S. 624, 632, 108 S. Ct. 1423, 1429, 99 L. Ed. 2d 721 (1988). That would suggest that the $500 payable to Bingman was remedial, while the $1,450 payable to the court was punitive.

However, the issue is not quite as clear as that either because the amount payable to Bingman was not intended to be compensatory it was intended to be punitive to the prison officials because of their completed action or inaction. In that regard, the Supreme Court has gone on to say: "An unconditional penalty is criminal in nature because it is 'solely and exclusively punitive in character.' . . . A conditional penalty, by contrast, is civil because it is specifically designed to compel the doing of some act." Id. at 633, 108 S. Ct. at 1430 (citation omitted). On that theory, both of the amounts assessed against the prison officials were criminal because both of them were unconditional and punitive.

The Supreme Court brought additional clarity to this question in International Union, UMW v. Bagwell, 512 U.S. 821, 114 S. Ct. 2552, 129 L. Ed. 2d 642 (1994). There the Court opined that the nature of a contempt sanction is not to be decided from its label alone but, rather, "'from an examination of the character of the relief itself.'" Id. at _____, 114 S. Ct. at 2557 (quoting Hicks, 485 U.S. at 636, 108 S. Ct. at 1432). The Court went on to explain:

A contempt fine accordingly is considered civil and remedial if it either "coerces the defendant into compliance with the court's order, [or] . . . compensates the complainant for losses sustained." Where a fine is not compensatory, it is civil only if the contemnor is afforded an opportunity to purge. Thus, a "flat, unconditional fine" totalling even as little as $50 announced after a finding of contempt is criminal if the contemnor has no subsequent opportunity to reduce or avoid the fine through compliance."

Id. at _________, 114 S. Ct. at 2558 (citations omitted).

In this case, the magistrate Judge did not impose either monetary sanction for the purpose of compensating Bingman. The $1,450 sum was payable to the court; there can be no doubt about its punitive character. Moreover, the $500 sum payable to Bingman was not to compensate him for any actual or estimated harm. The magistrate Judge did not make any reference whatever to compensation. He made it clear that the whole purpose was to punish the prison officials. While he added that he also desired to encourage compliance with the order in question and with future orders, that alone did not convert these fixed sanctions from criminal to civil. Virtually every punishment has a concomitant deterrent purpose. See Bagwell, U.S. at ________, 114 S. Ct. at 2557.

Therefore, we hold that both of the sanctions assessed against the prison officials were criminal in nature. As a result, we have jurisdiction over the appeal from both mulcts.

STANDARD OF REVIEW

We review the legal question of whether the magistrate Judge had jurisdiction to impose a criminal contempt sanction de novo. See United States v. Powell, 24 F.3d 28, 30 (9th Cir.), cert. denied, ______U.S. _______, 115 S. Ct. 525, 130 L. Ed. 2d 430 (1994).

Discussion

Having placed our own jurisdiction on a firm footing, we must now turn to the question of the magistrate Judge's. We find that jurisdiction lacking - magistrate Judges do not have the power to adjudicate criminal contempts.

We start, as we must, with the unremarkable proposition that magistrate Judges are not Article III Judges; they are simply "creatures of statute, and so is their jurisdiction. We cannot augment it . . . ." N.L.R.B. v. A-Plus Roofing, Inc., 39 F.3d 1410, 1415 (9th Cir. 1994). That jurisdiction is both set forth and limited in 636 of Title 28 U.S.C. Section 636(e) quite explicitly covers the issue before us. It reads, in pertinent part:

In a proceeding before a magistrate, any of the following acts or conduct shall constitute a contempt of the district court for the district wherein the magistrate is sitting: (1) disobedience or resistance to any lawful order, process, or writ . . . . Upon the commission of any such act or conduct, the magistrate shall forthwith certify the facts to a Judge of the district court and may serve or cause to be served upon any person whose behavior is brought into question under this section an order requiring such person to appear before a Judge of that court upon a day certain to show cause why he should not be adJudged in contempt by reason of the facts so certified. A Judge of the district court shall thereupon, in a summary manner, hear the evidence as to the act or conduct complained of and, if it is such as to warrant punishment,...