Johnson v. Cherry

• Decision Date: 06 September 2005
• Docket Number: No. 04-3562.,04-3562.
• Citation: 422 F.3d 540
• Parties: Paula JOHNSON, Plaintiff, v. Leland CHERRY and James Mister, Defendants-Appellees. Appeal of: Barbara J. Clinite, Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

422 F.3d 540

Paula JOHNSON, Plaintiff, v. Leland CHERRY and James Mister, Defendants-Appellees.

Appeal of: Barbara J. Clinite, Appellant.

No. 04-3562.

United States Court of Appeals, Seventh Circuit.

Argued May 4, 2005.

Decided September 6, 2005.

COPYRIGHT MATERIAL OMITTED

Paula Johnson, East St. Louis, IL, pro se.

Michael L. Wagner, Hinshaw & Culbertson, Belleville, IL, for Defendants-Appellees.

Barbara J. Clinite (Argued), Chicago, IL, pro se.

Before RIPPLE, ROVNER, and WOOD, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

When a motion was filed on behalf of plaintiff Paula Johnson seeking leave for Johnson's former attorney, appellant Barbara J. Clinite, to withdraw and for her new counsel to file his appearance, Clinite moved to strike the motion, averring that her signature on the motion had been forged. Following a hearing called to investigate the forgery allegation, the district court found that Clinite had, in fact, signed the motion. Based in part on that finding, the court on its own motion imposed monetary sanctions on Clinite. Clinite appeals, contending that the finding is clearly erroneous. Although we agree with Clinite that the record hints rather strongly that she did not sign the substitution motion, we need not resolve that question. Rather, because the court imposed sanctions on Clinite without first notifying her that it was contemplating that step and giving her an adequate opportunity to respond, we vacate the sanctions order and remand for reconsideration. The court also ordered Clinite to turn over her case file to Johnson's new counsel, notwithstanding the fact that Johnson has not yet compensated Clinite for her time and expenses nor provided security for that obligation. Clinite contends that in this respect the order disregarded her common-law retaining lien. We direct the court to revisit this issue on remand as well.

I.

In this civil rights action, which remains pending in the district court, plaintiff Johnson alleges that the two defendant police officers are liable pursuant to 42 U.S.C. § 1983 for arresting her without probable cause. Clinite filed the action on Johnson's behalf in 2002; she also represented Johnson in two other cases in state court and she represented Johnson's mother in another federal suit. A preliminary round of written and oral discovery in the instant case was complete by the summer of 2004, when the events pertinent to this appeal occurred.

Following a settlement conference in June 2004, Johnson advised Clinite that she and her mother were engaging a new attorney, Jeffrey Hammel, to represent them in their two respective federal lawsuits. Clinite contacted Hammel, who told her that he might be taking her place in both cases but could not be sure until he met with Johnson's mother to verify her wishes. That meeting did not take place until July. In the meantime, Johnson sent Clinite substitution of counsel forms which, according to Clinite, she did not sign. Clinite instead prepared her own forms and sent them unsigned to Hammel along with an itemization of her expenses to date. On or about July 23, Hammel left Clinite a voicemail advising her that he would be seeking leave to replace her as counsel for both Johnson and her mother. Hammel also indicated that he had misplaced the substitution forms Clinite had sent him. On or about July 26, Clinite prepared another set of substitution forms and sent them to Hammel along with another itemization of her time and expenses to date. Clinite avers that she did not place her signature on those forms.

On July 27, Hammel's office electronically filed a substitution motion that bore what appeared to be Clinite's written signature in addition to Johnson's; Hammel had signed the document electronically using the symbol "/s/" followed by his typewritten name. R. 17.¹ Clinite received a copy of the motion by mail on or about July 28. On that same day, the district court granted the motion. R. 18.

On August 5, Clinite filed a motion to strike the substitution motion, averring that the signature on the motion purporting to be hers was not genuine. Specifically, Clinite alleged that the motion "contains a xeroxed copy of my signature taken from another document and inserted on the motion." R. 19 at 3 ¶ 16.

The district court immediately granted the motion to strike and vacated its prior order approving the substitution of attorney Hammel for attorney Clinite. R. 20. In addition, the court directed the person responsible for the apparent forgery of Clinite's signature to explain himself or herself:

The Court hereby demands an accounting from the responsible party regarding the reason Ms. Clinite's unauthorized signature was used in a document filed with this Court. If this accounting is not received on or before August 16th, this Court will call a hearing and sanctions, more severe than any that would be meted out pursuant to voluntary compliance with this order, will be forthcoming.

Id. at 1-2.

Both attorney Hammel and Johnson herself filed statements in response to the court's demand for an explanation. Both denied having improperly inserted Clinite's signature into the motion to substitute. R. 21, 23.

In his response, Hammel acknowledged that he had received a draft (unsigned) motion to substitute from Clinite, a copy of which he attached to the response. R.23 at 2 ¶ 11 & Ex. A. He further disclosed that he also had received motions to substitute from Johnson for both her case and her mother's suit, and that the motions already contained what purported to be the signatures of Clinite, Johnson, and her mother. Id. at 2 ¶¶ 13-15. Once Hammel had met with Johnson's mother, Parks, and confirmed that Parks wished for him to represent her, Hammel directed his secretary to file the motions to substitute that he had received from Johnson. Id. at 3 ¶¶ 18-24. Hammel attached to his response a copy of the signed substitution motion for Johnson's suit that Johnson had delivered to his office. Id. at 2 ¶ 14 & Ex. B. Interestingly, that version of the motion differs in significant respects from the version that was actually filed. We take note of two prominent differences. First, although the content of the two versions is identical, the text of the filed motion is entirely in capital letters, see R. 17, whereas the text of the version attached to Hammel's response is not, R. 23 Ex. B. Moreover, on the second page of the filed version, the text of the final sentence of the motion runs eccentrically down the page in a narrow column to the immediate left of the (purported) signatures of Clinite and Johnson. R. 17 at 2. By contrast, in the version attached to Hammel's response, the text of the final paragraph is entirely above the signatures, within margins that are consistent with the rest of the motion. R. 23 Ex. B at 2. No explanation for the differences between the two versions is supplied in Hammel's response; indeed, Hammel's response did not even acknowledge that the version attached to his response was different from the one his office filed with the court.

Johnson stated in her own response that she "ha[d] never signed the signature of: Attorney Barbara Clinite," R. 21 at 2, that the substitution of counsel forms had been sent to her in East Saint Louis by mail from Chicago, Illinois, id. at 4 (from whom her statement did not make clear, but presumably from Clinite), and that any suggestion that she herself may have forged Clinite's signature was "[f]raudulent" and "unfounded," id. at 5, 6. Johnson also alleged that Clinite owed her the sum of $2,700 "for services as a legal clerk." Id. at 7. In apparent support of that allegation, Johnson submitted a series of letters that Clinite had written to her. R. 21 (sealed attachments); see also R. 25 (sealed attachments). That correspondence revealed that Clinite, who apparently lacked the ability to file documents electronically from her own outdated computer, occasionally had relied on Johnson and others to electronically file documents on her behalf. See R. 21 (sealed attachments).

In an order dated August 18, 2004, in which the district court denied a request for recusal filed by Johnson, the court took the opportunity to schedule a hearing regarding the unauthorized signature of Clinite on the substitution motion. The court noted that at that hearing, it would also address Clinite's use of Johnson and others to file documents electronically, which the court found "troubling." R. 26. at 7.

In advance of that hearing, Clinite filed a document that, in part, responded to the court's concern about her having used Johnson and others to file documents on her behalf. Clinite indicated that when the Southern District of Illinois had adopted the electronic filing system and had denied her request for an extension of time to comply with the requirements of that system, she had begun to file documents electronically by scanning paper or "hard" copies into the system at the Clerk's offices in Benton and East St. Louis. Because of the distance between her office in Chicago and the Southern District, however, Clinite had in certain instances recruited Johnson to do this task for her. R. 27 at 1 ¶¶ 2-3. Accordingly to Clinite, most if not all of the documents that she asked Johnson to file for her in this manner were documents that were filed in Johnson's own case, her mother's case, or a case involving a cousin of Johnson's. Id. ¶ 3. Clinite indicated that she never gave Johnson a document to file that she (Clinite) had not already signed. Id. ¶ 4. Clinite further averred that she had never explained to Johnson how to affix a typewritten "/s/" version of Clinite's signature to a document, nor had she ever instructed Johnson to affix such a signature to a document. Id. at 1-2 ¶¶ 4-6. Clinite pointed out that the signature purporting to be hers on the substitution motion appeared to be an actual handwritten signature rather than a typewritten signature. Id. at 6...