Dawson v. U.S.

Decision Date31 October 1995
Docket NumberNo. 94-10938,94-10938
PartiesJohnnie DAWSON, Plaintiff, v. UNITED STATES of America, Defendant-Appellant, and R. Wayne Hughes and Claude D. Brown, Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

Frank W. Hunger, Asst. Atty. Gen., Douglas N. Letter, Steve Frank, Barbara C. Biddle, Appellate Staff, U.S. Dept. of Justice, Civil Div., Washington, DC, for appellant.

Art Brender, Fort Worth, TX, for Hughes.

John M. Faust, Robert Cynkar, Michael Kirk, Shaw, Pittman, Potts & Trowbridge, Washington, DC, for amicus curiae Nat. Assoc. of Asst. U.S. Attys.

Ronald L. Goranson, Dallas, TX, David Cunningham, Houston, TX, for amicus curiae Tex. Criminal Defense Lawyers Ass'n.

Appeals from the United States District Court for the Northern District of Texas.

Before SMITH, BARKSDALE and BENAVIDES, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

At issue are sanctions imposed by United States District Judge John H. McBryde against Assistant United States Attorneys R. Wayne Hughes and Claude D. Brown, based on a local rule that civil litigants "make a good-faith effort to settle"--in this instance, a pro se Federal Tort Claims Act claim by a federal prisoner for injuries from voluntary recreation, in which Hughes and Brown were counsel for the United States. The district court abused its discretion; we REVERSE.

I.

In early 1992, Johnnie Dawson, incarcerated at the Fort Worth Federal Correctional Institution, filed, pro se, an FTCA action, alleging that, while pursuing a fly ball in a prison softball game, he collided with a pole and was injured. Because of the district court's meticulous recitation of, and reliance upon, numerous facts and actions (and non-actions) by the appellant attorneys, and especially because of its numerous findings of fact (made from the bench and in two opinions totalling 70 pages, and quoted extensively in this opinion) extremely critical not only of their conduct, but of them personally, it is necessary to develop similarly the facts in great detail. Moreover, the juxtaposition of the basis for the action (pro se prisoner suit for injury while chasing fly ball) against the resulting time, expense, and potential injury to the professional reputations of two attorneys for the United States, underscores the increasing need for better means of resolving prisoner suits.

In his complaint, Dawson alleged that, while chasing the ball, he injured his shoulder when he tripped on a cord located three feet away from, and parallel to, an unpadded pole in the outfield, and collided with the pole; that he had surgery on his shoulder, but had not regained full control and use of it; and that he had sustained "severe mental distress and emotional injury". Dawson claimed that his injuries were caused by the negligence of prison employees in failing to warn about, as well as mark and pad, the pole and cord; and he sought $600,000 in actual, and $300,000 in punitive, damages, plus attorney's fees.

Attached as an exhibit to the complaint was the Bureau of Prisons' detailed denial of Dawson's administrative claim for $1 million. The denial was based, inter alia, on the conclusion that Dawson's "inattention to [his] location while catching the fly ball was the proximate cause of [his] injury".

In its answer, the Government admitted that Dawson was injured by the collision, but denied liability. As affirmative defenses, it asserted that the complaint failed to state a claim upon which relief could be granted; that Dawson was not entitled to, inter alia, punitive damages or attorney's fees; that his injuries were not caused by the Government's negligence, but by his own; and that recovery was barred under Texas law, because Dawson's negligence was equal to or greater than any negligence of the Government.

After the Government answered, a district court order issued for the parties to confer and submit a joint status report. Among other things, they (including a representative with unlimited settlement authority) and their counsel were to meet, prior to filing the report, in order to discuss settlement; and they were instructed that "[t]he court expects the parties to comply with the requirements of Local Rule 9.1 that the parties make a good-faith effort to settle". 1 The report was, inter alia, to

detail[ ] the date on which the settlement conference was held, [and] the persons who were present, including the capacity of any representative who was present, ... state[ ] ... whether meaningful progress toward settlement was made, and ... state[ ] ... the prospects of settlement.

The joint status report, filed in mid-August 1992, stated that a settlement conference had been held at the prison on August 10, attended by Dawson, appellant Brown (who had authority to settle on behalf of the Government), appellant Hughes (the attorney of record for the Government), Lori Cunningham (Bureau of Prisons, Attorney Advisor), and Linda DuBose (Bureau of Prisons, Paralegal). 2 The parties reported that

Mr. Dawson had previously advised Wayne Hughes that he would accept an amount between $0.00 to $500,000.00 to settle this case.... Little progress towards settlement was made at this time because discovery has not been completed and there remains [sic ] many disputed facts which must be resolved. Both parties agree that the prospect for a settlement will always be open and will be diligently pursued when they are in a better position to engage in informed negotiations after more information about the case is developed.

(As discussed infra, although the Government did not make a monetary offer, it did discuss providing Dawson with additional surgery, if needed.)

On August 18, the district court entered a scheduling order, directing the parties and their counsel to meet to discuss settlement at least 10 days before the pretrial conference (set for March 1, 1993; rescheduled for March 4), and at least 14 days prior to trial (set for late April). Once again, the order provided that:

[t]he court expects the parties to comply with the requirements of Local Rule 9.1 that the parties make a good faith effort to settle. Within seven ... days of such settlement conference, the parties shall jointly prepare and file a written report, which shall be signed by all counsel for each party, detailing the date on which the settlement conference was held, the persons present, including the capacity of any representative present, a statement regarding whether meaningful progress toward settlement was made, and a statement regarding the prospects of settlement.

The Government moved in January 1993 to dismiss or, alternatively, for summary judgment. Relying on the Texas recreational use statute, Tex.Civ.Practice & Rem.Code Sec. 75.001, et seq., which provides that a landowner who makes its property available for recreational use is liable only if it has been grossly negligent, or has acted with malicious intent or bad faith, the Government asserted that Dawson had not pleaded, and could not prove, a claim against it under the FTCA, under which the Government is liable only "if a private person would be liable to the claimant in accordance with the law of the place where the act or omission occurred". 28 U.S.C. Sec. 1346(b); see also 28 U.S.C. Sec. 2674.

The parties reported on February 22 that a settlement conference, attended by Dawson, Brown, and Hughes, was conducted on February 17, at the United States Attorney's office. 3 They reported that

[a] discussion about the merits of the case and the evidence was held and [Dawson] submitted an offer of settlement. The [Government] did not submit a counter-offer, telling [Dawson] the reasons therefore [sic ]. [Dawson] would advise the Court that there was no good faith offer made by the [Government], reason being that [Dawson] cannot prove negligence by the United States. The conference ended and the parties agreed to meet on April 8, 1993 for further settlement discussions.

(Emphasis added.) 4

Although Dawson signed a proposed pretrial order, he did not attend the March 4 pretrial conference. But, while the court and the Government's counsel waited in vain for him to appear, the court questioned Hughes about the Government's summary judgment motion, and his familiarity with 18 U.S.C. Sec. 4042, which provides that the Bureau of Prisons is to provide safekeeping and care for federal prisoners. Hughes stated that he was "[v]aguely" familiar with the statute, but did not think it applicable to an FTCA action. When asked why he thought the Texas recreational use statute was applicable, Hughes replied that the field where Dawson was injured was used for recreational purposes by both prisoners and other groups. The court ruled that the Texas statute was inapplicable, because Dawson was not in prison for recreational purposes; it therefore denied the summary judgment motion. (In its subsequent opinion to that effect, the court stated that it was "disappointed that the government would rely on [the Texas recreational use statute] in light of its blatant inapplicability to the facts of this action", and held that the Bureau of Prisons' duty of care was established by 18 U.S.C. Sec. 4042, independent of an inconsistent state rule.)

The court next questioned Hughes about settlement, inquiring whether any dollar amounts had been discussed in the negotiations. Hughes replied that Dawson had made an offer, but the Government had not. Upon the court inquiring why the Government so acted, Hughes cited (1) the Government's then pending summary judgment motion; and (2) his belief that the action was frivolous. At the conclusion of the conference, the court stated:

If this was a suit involving a private party, as opposed to the government, it would be a very serious liability suit. And I guess the only reason the government doesn't consider it to be a serious liability suit is it doesn't take things seriously a lot of times when it should.

Now,...

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