Dartez v. Peters

• Decision Date: 27 December 2018
• Docket Number: No. 18-3073,18-3073
• Parties: SAMUEL LEE DARTEZ, II, Plaintiff - Appellee, v. RICK PETERS; FNU WARE; MARK FRENCH; BRIAN JOHNSON; ROBERT W. DIERKS; ALEX R. TAYLOR; JASON S. BAILEY; CHRISTOPHER BEAS; DANIEL W. DILORETO; CHRISTOPHER P. MAI; COLBY J. MARKHAM; DAVID RUBLE; BRIAN S. HEDGECOCK, Defendants. GREGORY P. GOHEEN, Attorney - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

SAMUEL LEE DARTEZ, II, Plaintiff - Appellee, v. RICK PETERS; FNU WARE; MARK FRENCH; BRIAN JOHNSON;ROBERT W. DIERKS; ALEX R. TAYLOR; JASON S. BAILEY;CHRISTOPHER BEAS; DANIEL W. DILORETO; CHRISTOPHER P. MAI;COLBY J. MARKHAM; DAVID RUBLE; BRIAN S. HEDGECOCK, Defendants.GREGORY P. GOHEEN, Attorney - Appellant.

No. 18-3073

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

December 27, 2018

(D.C. No. 5:15-CV-03255-EFM-GEB)

(D. Kansas)

ORDER AND JUDGMENT^*

Before McHUGH, MURPHY, and CARSON, Circuit Judges.

Samuel Lee Dartez, II, initiated a 42 U.S.C. § 1983 action against several named defendants and seven John Doe defendants who worked for the Kansas Highway Patrol ("KHP"). Gregory P. Goheen appeared as counsel on behalf of two named defendants who worked for the KHP, and the district court ordered those two defendants to disclose the names of the John Doe defendants. Mr. Goheen disclosed the names of thirty-four KHP officers. At a show cause hearing, the district court held Mr. Goheen in contempt, reserving issuance of a sanction. Six months later, the district court ordered Mr. Goheen to perform 100 hours of pro bono service.

Mr. Goheen appeals from the district court's contempt and sanction orders, contending the sanction imposed renders the contempt criminal in nature but that the proceeding resulting in the contempt order did not comply with the requirements set forth in Federal Rule of Criminal Procedure 42. Concluding (1) the sanction imposed was punitive rather than coercive or compensatory, rendering the contempt criminal in nature; (2) the conduct cited in support of the contempt did not permit for summary disposition under Rule 42(b); and (3) the district court neither provided Mr. Goheen adequate notice nor appointed a prosecutor before holding Mr. Goheen in contempt as required by Rule 42(a), we vacate the district court's contempt and sanction orders and remand for further proceedings.

I. BACKGROUND

On November 13, 2014, members of the KHP, as well as two other law enforcement agencies, oversaw Mr. Dartez's arrest. Through a § 1983 action, Mr. Dartez alleged KHP officers "brutally beat[]" him and that some officers at the sceneof the arrest looked on without intervening or providing medical care. Amended Complaint at 2, Dartez v. Peters, No. 5:15-cv-03255-EFM-GEB (D. Kan. June 30, 2016) ECF No. 11. In his amended complaint, Mr. Dartez named as defendants (1) Rick Peters and Lieutenant Robert Ware of the KHP; (2) seven John Doe defendants, identified as KHP officers; and (3) six named members of law enforcement agencies other than the KHP.

Mr. Goheen entered an appearance on behalf of Mr. Peters and Lt. Ware. Mr. Dartez filed a request for production of documents, seeking the names and contact information of the KHP officers who arrested him, as well as KHP members present on the scene during the arrest. Mr. Goheen, on behalf of Mr. Peters and Lt. Ware, filed three motions for extensions of time to file answers to Mr. Dartez's amended complaint and to respond to his request for production of documents.¹ A magistrate judge granted each motion. On November 28, 2016, before filing an answer or responding to Mr. Dartez's request for production of documents, Mr. Peters, Lt. Ware, and the John Doe defendants moved to dismiss Mr. Dartez's claims against them. In part, the motion argued the claims against the John Doe defendants should be dismissed pursuant to Federal Rule of Civil Procedure 4 forfailure to timely complete service of process within 120 days of the amended complaint² and that the statute of limitations precluded refiling of the claims.

The district court granted in part and denied in part the KHP defendants' motion to dismiss. Relevant to this appeal, the district court concluded Mr. Dartez established good cause for not completing service of process on the John Doe defendants due to the failure of Mr. Peters, Lt. Ware, and Mr. Goheen to respond to the request for production of documents.³ To facilitate Mr. Dartez's ability to complete service of process on the John Doe defendants, the district court ordered Mr. Peters and Lt. Ware to "take all reasonable steps to ascertain the full names and service addresses of John Doe Nos. 1-7 allegedly involved in the incident described in the Amended Complaint" and to "submit to the Court and to [Mr.] Dartez the full names and service addresses of John Doe Nos. 1-7 within 30 days [of July 19, 2017]." App'x at 36-37.

On August 10, 2017, nearly eleven months after Mr. Goheen entered his appearance, Mr. Goheen provided Mr. Dartez with the names of thirty-four KHP officers. The district court convened a status conference hearing on its order granting in part and denying in part the KHP defendants' motion to dismiss and requiring Mr. Peters, Lt. Ware, and Mr. Goheen to disclose the names of the John Doe defendants.At the hearing, the district court took issue with Mr. Goheen providing thirty-four names as the court "seriously doubt[ed] that these 34 troopers were present at the incident in question." Id. at 173. The court stated that providing a list of thirty-four names was "in complete defiance" of its order and "ma[de] a mockery of what the Court asked." Id. After a brief colloquy, Mr. Goheen acknowledged that while all thirty-four officers responded to the dispatch call, some of the officers did not participate in or observe Mr. Dartez's arrest but rather patrolled a perimeter one-mile around the arrest scene. The district court suggested Mr. Goheen engaged in "further obfuscation" in an effort to "again delay" revealing the identity of the KHP officers Mr. Dartez sought to sue. Id. at 177. And when Mr. Goheen denied understanding who Mr. Dartez intended to sue, the district court accused Mr. Goheen of "willful ignorance." Id. at 179. The district court then asked Mr. Goheen if he knew "who the troopers were at the car arresting [Mr. Dartez]," and Mr. Goheen provided specific names prior to the close of the hearing. Id. at 180.

Subsequent to Mr. Goheen providing the names, the district court stated the following findings and held Mr. Goheen in contempt of court:

I have to tell you that I consider defendant's conduct in this case to be the sort of sharp and -- well, I'll just call it sharp practice that, frankly, I'm proud of the fact that Kansas lawyers do not usually engage in. It's taking every advantage of the rules to obfuscate, to delay, to deny information, to take advantage of an unrepresented party, notwithstanding the rules of this court . . . to interpret their requests broadly and not hold them to technical requirement.

As Mr. Goheen has noted, these are ethical charges that I am, in essence, bringing against him. . . .

I guess in the strictest sense, though, I cannot find that what he did, although I think deplorable and I think not consistent with thepractice that the federal court expects of its counsel under Rule 1[1] nor that Kansas courts expect of Kansas counsel, I cannot find that it was an ethical violation. And so although I deplore it and although, frankly, I will consider that with respect to the other proceedings in this case, I cannot hold counsel to an ethical violation with respect to those.

However, it appears to me that there's no reasonable interpretation of my order to identify the troopers that could have resulted in a response to identify 34 names. I've heard Mr. Goheen's explanation of that. I've pushed him at it repeatedly, to allow him to restate the reasons why he thought what my order and my clarification at his request specified that I wanted, but no reasonable person, reading [Mr. Dartez's] amended complaint and his requests and the Court's order, could have concluded that the Court was looking for 34 names.

I find that response to be in direct violation of the Court's request. I find Mr. Goheen to have done that in a further attempt to delay responding to those names, names which he had because, as I pressed him here, he knew what I wanted, he knew immediately what I wanted, and his associate was able to obtain those names within less than ten minutes, and yet that's not what he gave me in response to my earlier request.

I find that to be in violation of the Court's order that he provide those names, and for that I am determining that he should be held in contempt of this court for violation of a direct order of the court.

I'm going to defer issuing a sanction as to that contempt ruling until we have an opportunity to determine the materiality of the prejudice to plaintiff in this case. I think, notwithstanding what Mr. Goheen just said, that we're not talking about discovery requests and prejudice to the client; we're talking about ethical rules. They are, in fact, related, and I think a sanction to be imposed should be weighed in the context of what -- of what the detriment to [Mr. Dartez] is in this case. But the Court is finding Mr. Goheen in contempt of the court for refusing to comply without any reasonable basis to the Court's order that the seven names be identified to [Mr. Dartez]. I find that his response [with the thirty-four names] was a complete willful violation of that, and I will determine what sanction to impose with respect to that contempt at a later time as I've just indicated.

Id. at 205-07. On the same day as the hearing, the district court entered a written order holding Mr. Goheen in contempt of court and deferring issuance of a sanction.

On March 7, 2018, six months after the hearing, the district court imposed a sanction of "100 hours of pro bono service, as directed by a judge of this Court." Id. at 212.

On appeal, Mr. Goheen challenges both the procedure and the substance of the district court's contempt holding. Procedurally, Mr. Goheen argues the imposed sanction renders the contempt criminal in nature because it neither coerced him to engage in conduct nor provided Mr. Dartez with any compensation. And Mr. Goheen argues that where the contempt was criminal in nature, Federal Rule of Criminal...