Henderson v. Department of Public Safety and Corrections
| Citation | 901 F.2d 1288 |
| Decision Date | 29 May 1990 |
| Docket Number | No. 90-4118,90-4118 |
| Parties | Robert HENDERSON, Plaintiff, v. DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, Etc., et al., Defendants, Houston T. Penn, Movant-Appellant. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Houston T. Penn, Asst. Atty. Gen., William J. Guste, Jr., Atty. Gen., Baton Rouge, La., for movant-appellant.
W. Orie Hunter, III, Shreveport, La., for appellee.
Appeal from the United States District Court for the Western District of Louisiana.
Before POLITZ, GARWOOD, and JOLLY, Circuit Judges.
Houston T. Penn is before this court for the second time, complaining that the district court's imposition of sanctions against him without notice and an opportunity to be heard violates due process rights guaranteed to him by the fourteenth amendment, and that the district court abused its discretion in finding him in violation of Rule 11 and in imposing the sanctions. For the reasons discussed below, we affirm.
Penn, who is an Assistant Attorney General employed by the Louisiana Department of Justice, represented the defendants, the Louisiana Department of Public Safety and Corrections, C. Paul Phelps (former Secretary of the Department), and D.R. Guillory (former Warden of Wade Correctional Center) in a lawsuit filed by Assistant Warden Robert Henderson, an employee of the Louisiana Department of Public Safety and Corrections. After a trial on the merits, the district court entered judgment for the defendants, Mr. Penn's clients, and no appeal was taken. The judgment on the merits is final and the merits are not relevant to the issue presently before this court.
What is relevant is what occurred before the trial of the case. On October 27, 1988, approximately one month prior to the scheduled trial, Penn filed a motion for change of venue and a motion in limine or, alternatively, motion for summary judgment asserting several grounds for relief. Shortly thereafter, the district court received a letter from plaintiff's counsel advising that he had had difficulty in contacting Penn to prepare the pretrial order. On October 28, 1988, the district court warned counsel that:
This court expects all parties to work amicably toward the completion of an appropriate pretrial order which will assist the ultimate resolution of the case. The failure of any party to proceed in good faith or obey this court's standing instructions will result in sanctions under Fed.R.Civ.P. 16(f).
On November 1, 1988, Penn filed a motion for a continuance, contending that counsel for the plaintiff had failed to provide defense counsel with a copy of his witness and exhibit lists in a timely manner. The lists were ultimately received by Penn prior to the deadline for filing the pretrial order. On November 2, 1988, the magistrate denied the motion for continuance and noted several deficiencies in Penn's proposed insert to the pretrial order. In conclusion, the magistrate stated: "Counsel are warned that any dilatory tactics will result in sanctions."
On November 2, 1988, Penn filed a "Motion to Recusal [sic ] of the Trial Judge." According to the memorandum in support of the motion, the defendants sought recusal pursuant to 28 U.S.C. Sec. 455. The motion asserted two reasons for recusal: (1) "opposing counsel related that the judge presiding over this case (Judge Stagg) has known the opposing counsel since he was a kid and that the judge presiding over this case was friends [sic ] of opposing counsel and opposing counsel's father"; and that (2) the judge had already ruled adversely upon the credibility of one of the defendants in a prior matter. 1
On November 8, 1988, the district court denied the motion for recusal and the motion for change of venue. After addressing those motions, the court stated:
The motion for recusal and for change of venue have not been well founded, either in fact or law. Apparently, counsel for defendants has used these motions, as well as the motion for a continuance, for dilatory purposes. Counsel for defendants is warned that this court will scrutinize future motions for compliance with Fed.R.Civ.P. 11.
Penn was undeterred. On November 17, 1988, Penn filed a motion for reconsideration of the district court's order denying the motion for recusal, which added nothing new to his previous motion. Attached to the motion was an affidavit by Penn attesting that the contents of the motion to recuse and the motion for reconsideration were true and accurate to the best of his knowledge and belief. The district court construed the motion for reconsideration as a new motion for disqualification under 28 U.S.C. Sec. 144. The court noted that, under Sec. 144, actual bias must be sufficiently alleged. After observing that Penn had failed to conduct a reasonable inquiry into the law, and that Penn either had not read the relevant cases or, having read them, had chosen to ignore their authority, the court ruled that the affidavit filed by Penn was legally insufficient under Sec. 144. Finally, the court stated:
Concurrently with the filing of this Memorandum Ruling, the court is placing under seal another ruling which imposes sanctions upon Mr. Penn pursuant to Fed.R.Civ.P. 11. The court will release the sealed ruling when the trial is complete. The ruling is placed under seal so as not to detract from defense counsel's effort to prepare for trial.
Following the completion of the trial, the court's memorandum ruling finding a violation of Rule 11 and imposing sanctions on Penn was unsealed. Referring specifically to the motion for change of venue, motion for summary judgment, motion for continuance, motion for recusal, and motion for reconsideration filed by Penn, and noting that its three warnings had been ignored by Penn, the court found that those filings had been made by Penn
With respect to the motion for reconsideration, the court stated:
[T]he court is convinced that these motions, as well as the presently pending motion for reconsideration, were designed solely for dilatory purposes. The current motion asserting an argument under 28 U.S.C. Sec. 144 fails to cite a single authority in support of the relief requested. Even the most minimal inquiry into the law governing motions under Secs. 144 and 455 would have revealed that the asserted bias or impartiality must result from an extrajudicial source. Moreover, even a reading of the clear language of Sec. 144 demonstrates that it applies to "parties" instead of counsel.... Mr. Penn's allegations as to the basis for the alleged impartiality were not made on personal knowledge, but rather hearsay. Mr. Penn conducted no further inquiry into the factual basis. Had such an inquiry been conducted, Mr. Penn would have discovered the lack of factual merit.
The true reason for the filing of these motions became apparent at the pretrial conference. It was at that time that Mr. Penn's state of unpreparedness for trial became evident. This court is left with no other conclusion but that the recent filings of Mr. Penn, including the current motion for reconsideration, were designed solely to delay the November 28 trial date.
The court concluded that Penn had violated all three of the affirmative duties placed upon him by Rule 11, and imposed sanctions of $250 upon Penn, individually. The court further ordered Penn to read and brief the facts and law of the cases cited in its rulings on Penn's time during nights and holidays or days off and to deliver a "letter-perfect brief" to the judge's chambers by February 3, 1989.
Penn appealed to this court, assigning two bases of error: (1) lack of notice and an opportunity to be heard before sanctions were imposed resulting in violation of the due process rights guaranteed to him by the Fourteenth Amendment to the United States Constitution; and (2) an abuse of discretion by the district court in finding him in violation of Rule 11 and in imposing the sanctions. Because Penn did not argue to the district court either of the issues presented for review, this court remanded the case to the district court so that the district court could consider the issues. Henderson v. Louisiana, No. 88-4959, slip op. (5th Cir.1989).
On remand, Penn filed a motion to reconsider sanctions and a supporting memorandum. In the motion to reconsider, Penn asked for "a contradictory hearing" and requested that the sanctions be set aside. In his memorandum, Penn stated that the issue before the court was "the matter of the appropriateness of the imposition of sanctions on one of the counsel for the defendants for him [sic ] having filed a Motion to Recuse the Trial Judge."
On November 21, 1989, the district court notified Penn that the motion to reconsider sanctions had been assigned to the court's next regular motion date, February 14, 1990. The notice further stated that "the court's regular practice is to rule on the basis of the written briefs only." Penn made no response to the court's notice. He did not request a hearing or oral argument, and he did not object to the court's stated intention to rule on the basis of the briefs.
On January 22, 1990, the district court entered a memorandum ruling denying Penn's request to vacate the order imposing sanctions. For the reasons stated in its prior ruling, the court found that Penn's contention that the motion for recusal was not frivolous was without merit. The court also noted that Penn had failed to address the court's finding that he filed the motions at issue for the purpose of delaying the trial. The court concluded:
In this case, the record speaks for itself. Mr. Penn tried every avenue possible to delay resolution of this matter. The poorly-written briefs were submitted without making...
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