Brinkmann v. Dallas County Deputy Sheriff Abner

Decision Date08 April 1987
Docket Number86-1458,Nos. 86-1326,s. 86-1326
Citation813 F.2d 744
PartiesReginald R. BRINKMANN, Jr., Plaintiff-Appellant, v. DALLAS COUNTY DEPUTY SHERIFF ABNER, et al., Defendants-Appellees. Summary Calendar.
CourtU.S. Court of Appeals — Fifth Circuit

Reginald R. Brinkmann, Jr., pro se.

Henry J. Voegtle, III, Asst. Dist. Atty., Federal Section, Dallas, Tex., for defendants-appellees.

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

Before CLARK, Chief Judge, and GARWOOD and HILL, Circuit Judges.

GARWOOD, Circuit Judge:

This is an appeal from the district court's disposition of Reginald Brinkmann's 42 U.S.C. Sec. 1983 claims against Dallas County, four of its deputy sheriffs, and Sue O'Hara, a counselor in the Family Court Services Department. The district court granted O'Hara's motion for summary judgment, and subsequently dismissed with prejudice Brinkmann's complaint against the other defendants because of his refusal to obey a court order. We affirm.

Facts and Proceedings Below

Reginald Brinkmann and his wife were divorced in Dallas in 1982. The couple had one child, a son, and under the initial custody arrangement the parents had custody of him on different days of the week. This proved unsatisfactory and on September 21, 1983, the state court gave custody of the child to his maternal uncle and aunt, Mr. and Mrs. L. Dale Berthelot, who live in Baton Rouge. The circumstances leading to and surrounding the award of custody to the Berthelots gave rise to Brinkmann's present lawsuit.

Defendant Sue O'Hara was a Dallas County Family Court Services officer. At the direction of the state district court, she prepared family studies analyzing in particular divorce cases the various custody award options available to the court and recommending what she considered to be the best arrangement for the child. At the direction of the master of the state district court, O'Hara conducted such a study in the Brinkmann divorce case and suggested that the child's best interests would be served if the court placed him in the custody of the Berthelots. The court followed that recommendation.

In the present action, commenced April 4, 1985, Brinkmann asserted that O'Hara had conducted a secret meeting with the Berthelots and conspired to deprive him of "his Civil Rights with regard to his son"; that her social study report was false; that O'Hara had provided legal advice to the Berthelots in an October 3, 1983, letter; and that she furnished the Louisiana family court in Baton Rouge with "legal records that she knew were illegal and violated Texas laws."

In the meantime, prior to the ultimate decision that the child should reside with his uncle and aunt, the custody arrangement between Reginald Brinkmann and his wife was not going well. Brinkmann had custody during the week, but was supposed to surrender the child to his ex-wife on the weekends. This he would not do. The state district court thus issued several writs of attachment ordering the Dallas County Sheriff to apprehend the child and deliver him to his mother. The record is silent, but apparently the child was eventually placed with the Baton Rouge relatives in September 1983. During the Christmas holidays that year, the child spent time with both his parents. When the holidays were over, apparently Brinkmann would not surrender his son. We infer this from the fact that the state court issued more writs of attachment in the early part of 1984. Evidently, not until the spring of 1984 were sheriff's deputies successful in seizing the child from Brinkmann.

Brinkmann's claims against the deputy sheriffs (and Dallas County) arise from various actions taken in the execution of the writs--specifically, the deputies' entry into Brinkmann's home. Other claims arise from his arrest and confinement in September 1983 for contempt of court due to his consistent disregard of the court's custody decree.

Angry at the actions of the sheriff's deputies, and upset at O'Hara's role in depriving him of custody, Brinkmann sued in federal court under section 1983. In addition to the defendants now before us, he named other county officials, including the Dallas County Commissioners' Court members, the Dallas County Judge, and the Dallas County District Attorney. The district court granted the dismissal motion of these other defendants in September 1985. Brinkmann has given no notice of appeal referring to this order, nor has he made any challenge to it in his sole brief on this appeal. His theories of recovery and the reasons for the dismissal of these defendants are not important to this appeal.

A. O'Hara

O'Hara moved for summary judgment in February 1986. She listed the facts that she anticipated would be uncontroverted, described her integral role in the state judicial system, and argued that she should be shielded by derivative judicial immunity. In an affidavit, O'Hara categorically denied Brinkmann's accusations. Among other exhibits, O'Hara attached a copy of the October 3, 1983, letter she had sent the Berthelots after the state court had awarded custody of the Brinkmann child to them. This letter suggested that the Berthelots contact the attorney representing the child's mother to work out stated details of the custody arrangement. As it turns out, the copy of this letter attached to O'Hara's summary judgment motion was not the same version she had actually sent in one minor particular: the letter as actually sent had a handwritten notation next to the description of one of the areas that should be worked out with the attorney stating "Disregard--our phone conversation of 10/4 is more relevant."

Brinkmann seized on that variance between the attached letter and the letter as sent in his response to O'Hara's summary judgment motion. He accused O'Hara of perjury and attempting to deceive the court. He did not deny any of the facts that O'Hara presented or address the merits of her argument claiming derivative judicial immunity.

On May 6, 1986, the district court granted O'Hara's motion on grounds that she enjoyed derivative judicial immunity and, alternatively, that none of Brinkmann's claims showed the existence of a constitutional deprivation. Therefore, his claims, if true, would not be cognizable under section 1983. Brinkmann on May 12, 1986, gave notice of appeal directed to this May 6 order.

B. Deputy Sheriffs and Dallas County

On May 2, 1986, the district court directed that counsel for both sides submit a joint pretrial order no later than May 23, 1986. The court also gave the parties until May 28 to file a list of exhibits and witnesses, designate those portions of depositions to be offered at trial, deliver voir dire questions and a requested jury charge, and make all motions in limine. The court's order stated, "Failure to comply strictly with this order will result in sanctions. If the plaintiff does not timely file the required pretrial material, the case will be dismissed." (Emphasis added). Brinkmann did not obey the May 2 order.

On May 30, 1986, the district court held a pretrial conference at which Brinkmann admitted that he had received and understood the May 2 order, that he would have had no difficulty complying with it, but that he interpreted Miscellaneous Order 35 of the Local Rules of Practice for the Northern District of Texas as exempting him from the court's order because he was representing himself. In relevant part, that local order states,

"Pursuant to Rule 16(b) of the Fed.R.Civ.P., the United States District Courts of the Northern District of Texas do by this District Rule exempt from the schedule and planning mandates of Rule 16(b) the following categories of cases.

"....

"5. All cases involving pro se plaintiffs, including specifically Title VII cases."

The district court sanctioned Brinkmann by dismissing the case with prejudice. The court told Brinkmann

"Given the fact that you are representing yourself pro se, I do not think that sanctions are possible as far as bar disciplinary sanctions are concerned. And since you apparently were aware of my order and consciously chose to disregard it, and have no excuse for doing so, it is my opinion that dismissal with prejudice is the only effective sanction in this case, and that is the disposition I intend to make in this matter."

This was not the first time that Brinkmann had disregarded a court order in this case. The prior violations occurred the previous fall. The first violation was Brinkmann's failure to timely answer defendants' interrogatories as ordered by a magistrate. Brinkmann received the interrogatories on June 29, 1985. He did not answer responsively within thirty days, as required by Fed.R.Civ.P. 33(a). The defendants moved to compel discovery and for costs and attorneys' fees. At the hearing on this motion, Brinkmann's defense was that the interrogatories had not been served on him in duplicate, as required by Local Rule 6.1. The magistrate noted that Brinkmann "had not timely made any objections to the original manner of service of the interrogatories," but granted Brinkmann fifteen more days in which to answer the interrogatories, which were served on him in duplicate at the hearing. Brinkmann appealed the magistrate's order to the district court on September 19--five days before his answers were due. While that appeal was pending, Brinkmann disregarded the magistrate's order by refusing to answer within the additional fifteen days. Again, defendants moved for sanctions.

On October 3, 1985, the district court affirmed the magistrate's order and noted that Brinkmann's appeal "borders on frivolous." Nonetheless, the court stated that Brinkmann's appeal showed that his failure to comply was not in bad faith; accordingly, the court refused sanctions and gave Brinkmann ten more days to answer, a deadline he finally met.

Brinkmann behaved similarly in connection with the district court's October 23, 1985, order directing the...

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