Fulgham v. Turner et al (INMATE 2)
Filing
59
MEMORANDUM OPINION AND ORDER: it is ORDERED: 1) Plf's 54 objection to the Magistrate Judge's 52 Order is OVERRULED; 2) This action is referred back to the Magistrate Judge for further proceedings. Signed by Chief Judge William Keith Watkins on 4/3/2018. (alm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
CODY LEE FULGHAM,
# 65914
Plaintiff,
v.
KIM TURNER, et al.,
Defendants.
CODY LEE FULGHAM,
# 65914
Plaintiff,
v.
ANDY HUGHES, et al.,
Defendants.
)
)
)
)
)
) CASE NO. 1:17-CV-237-WKW
) (WO)
)
)
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)
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) CASE NO. 1:17-CV-269-WKW
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)
MEMORANDUM OPINION AND ORDER
On January 10, 2018, the Magistrate Judge entered an Order (Doc. # 52)
denying Plaintiff Cody Lee Fulgham’s motion (Doc. # 50) for contempt. On January
22, 2018, Plaintiff filed an objection (Doc. # 54) to the Magistrate Judge’s January
10, 2018 Order. After an independent and de novo review of those portions of the
Recommendation to which objection is made, Plaintiff’s objection is due to be
overruled because the Magistrate Judge’s January 10, 2018 Order is free of clear
error and is not contrary to law. See Fed. R. Civ. P. 72(a) (providing that, upon
review of an objection to the order of a magistrate judge concerning a nondispositive
matter, “the district judge . . . must . . . modify or set aside any part of the order that
is clearly erroneous or is contrary to law”).
I.
DISCUSSION
Criminal contempt1 for perjury generally requires a showing of intent to
obstruct justice by committing perjury and that justice was, in fact, obstructed. 18
U.S.C. § 401(1)2 (“A court of the United States shall have power to punish by fine
1
Plaintiff’s motion for contempt is reasonably construed as containing a request for a
summary criminal contempt finding and a request for referral for criminal contempt prosecution.
See 28 U.S.C. § 636(e)(2); Fed. R. Crim. P. R. 42(a)-(b). Plaintiff accused Defendant Brazier of
“Perjury in the First Degree,” accused Defendant Brazier of violating federal statutes, and
requested that Defendant Brazier be “held in contempt of court” and that the court “pursue criminal
prosecution” against Defendant Brazier. (Doc. # 51.) The remedies Plaintiff sought were punitive
in nature, not remedial. See McComb v. Jacksonville Paper Co., 336 U.S. 187, 191 (1949) (holding
that, “as distinguished from criminal contempt”, civil contempt does not require proof of intent
because civil contempt is a remedial “sanction to enforce compliance with an order of the court or
to compensate for losses or damages sustained by reason of noncompliance”). Accordingly, even
when construed liberally in light of Plaintiff’s pro se status, Plaintiff’s motion does not appear to
invoke civil contempt proceedings. The Magistrate Judge did not clearly err in construing
Plaintiff’s motion as requesting only criminal contempt remedies. See 28 U.S.C. §
636(e)(6)(B)(iii) (providing procedures for a magistrate judge to refer civil contempt matters to
the district judge in cases proceeding under § 636(a) or (b) “or any other statute”).
2
See Vaughn v. City of Flint, 752 F.2d 1160 (6th Cir. 1985), in which the Sixth Circuit
Court of Appeals explained the elements of criminal contempt under § 401(1) as follows:
In United States v. Seale, 461 F.2d 345, 366-67 (7th Cir.1972), the court identified
four elements required to support a contempt conviction under § 401(1): (1) There
must be conduct which constitutes “misbehavior”; (2) the misbehavior must
amount to an “obstruction of the administration of justice”; (3) the conduct must
occur in the court's presence; (4) there must be some form of intent to obstruct. The
minimum requirement for establishing intent was described as proof of “a volitional
act done by one who knows or should reasonably be aware that his conduct is
wrongful.” Id. at 368. Most courts appear to agree on these four essential
2
or imprisonment, or both, at its discretion, such contempt of its authority, and none
other, as . . . [m]isbehavior of any person in its presence or so near thereto as to
obstruct the administration of justice.”); United States v. Wright, 854 F.2d 1263,
1264 (11th Cir. 1988) (affirming as a “correct statement of the law” the district
court’s jury instruction stating that the elements of criminal contempt under § 401(1)
are “first, that the defendant did misbehave as described in the indictment; second,
that the defendant’s actions occurred in the presence of a court of the United States;
third, that the defendant’s actions caused the obstruction of the administration of
justice; and fourth, that the defendant acted knowingly and willfully” (emphasis
omitted)); In re Rice, 181 F. 217, 228 (C.C.M.D. Ala. 1910) (“No one can be
punished for a criminal contempt unless the evidence makes it clear that he intended
to commit it. To doubt is to be resolved in favor of respondent.”). Cf. United States
v. Burstyn, 878 F.2d 1322, 1324 (11th Cir. 1989) (holding that, “[i]n criminal
contempt, willfulness means a deliberate or intended violation, as distinguished from
an accidental, inadvertent, or negligent violation of an order” (citation and internal
quotation marks omitted)).
elements[.]
Vaughn, 752 F.2d at 1167. Accord. United States v. Wright, 854 F.2d 1263, 1264 (11th
Cir. 1988) (affirming similarly-worded jury instructions in a criminal contempt prosecution under
§ 401(1)).
3
The elements of the crime of perjury pursuant to 18 U.S.C. § 1621 (as opposed
to criminal contempt) are as follows: “(1) an oath authorized by a law of the United
States, (2) taken before a competent tribunal, officer or person, and (3) a false
statement wilfully made as to facts material to the hearing.” United States v. Hvass,
355 U.S. 570, 574 (1958) (citation and internal quotation marks omitted).
All Plaintiff presents in support of his allegations of criminal contempt and
perjury are two affidavits that allegedly conflict with each other and/or with other
evidence of record, evidence that was submitted by Defendant Brazier. The mere
fact that two affidavits may conflict with each other or with other evidence does not,
in and of itself, establish willful contempt and perjury as opposed to, for example,
mistake, inadvertence, or excusable neglect. It is not readily apparent from the face
of Defendant Brazier’s affidavits that a conflict exists or that any conflict or
ambiguity is the result of criminal intent to obstruct justice or commit perjury by
willfully and intentionally making false statements of material fact.3
3
In his original affidavit, Defendant Brazier stated that he personally “never received an
appeal from . . . Plaintiff regarding any grievance” and that, “to [Defendant Brazier’s] knowledge,”
Plaintiff had not submitted a grievance appeal “to any other member of jail staff regarding any
allegations contained in this lawsuit.” (Doc. # 33-1 at ¶10 (emphasis added).) In his supplemental
declaration filed on November 8, 2017, Defendant Brazier stated that “Plaintiff’s jail records
contain two appeal forms dated December 13, 2016 and March 3, 2017.” (Doc. # 45-1 at ¶ 4.)
When Defendant Brazier first filed his original affidavit, he also filed the December 13, 2016 and
March 3, 2017 grievance appeal forms along with an appeal form dated July 23, 2013. (See Doc.
# 31-1; Doc. # 31-8 at 76-78.) Two of those grievance appeal forms (those from July 23, 2013
and March 5, 2017) concern matters that clearly are not the subject of this lawsuit — namely, a
complaint about a charge against Plaintiff’s prison account for a destroyed mat and request to
change a rule allowing book approval only every three months. (Doc. # 31-8 at 76, 78.)
4
The fact that Defendant Brazier submitted Plaintiff’s appeal forms tends to
undermine any suggestion that Defendant Brazier was attempting to obstruct justice
or misrepresent material facts about the existence of the appeal forms or their
contents. In any event, justice will not be obstructed because Plaintiff has apprised
the Magistrate Judge of the ambiguities and potential conflicts in Defendant
Brazier’s affidavits and the record on summary judgment, and the Magistrate Judge
has stated that he will consider all the evidence and, “if necessary , . . . disregard
portions of conflicting affidavits.” (Doc. # 52.) Moreover, denial of Plaintiff’s
motion for criminal contempt at this stage does not preclude the Magistrate Judge
from sua sponte initiating criminal or civil contempt procedures if further review on
summary judgment suggests or confirms perjury or obstruction by any party.
The third grievance appeal, dated December 12, 2016, contains Plaintiff’s complaint that,
despite having previously submitted four grievances, he was only allowed to appeal one of those
grievances. (Doc. # 77 at 31-8 at 77.) It is not immediately clear whether the December 12, 2016
grievance appeal is related to the subject matter of Plaintiff’s amended complaint. (Doc. # 9 at ¶
28 in 1:17-CV-269-WKW (complaining that “Plaintiff has, on several occasions, been refused the
ability to exhaust administrative remedies. . . . Particularly, Plaintiff is continually denied
grievance appeal forms.”).) A “Deputy J. Jones” authored the appeal response, which stated that
appeal forms were not available for grievances where the inmate’s complaint (a challenge to a jail
rule) was not subject to the grievance procedure. Nothing on the December 12, 2016 grievance
appeal form or in Deputy Jones’s response indicates what jail rule Plaintiff sought to challenge in
conjunction with that grievance appeal or whether that jail rule is related to this action. Further,
the December 12, 2016 grievance appeal form does not contain any indication either that it was
submitted to Defendant Brazier or that Defendant Brazier was aware that the appeal form had been
submitted. Thus, it is not clearly apparent from the face of the materials in the record that
Defendant Brazier intended to commit perjury or obstruct justice when he stated that he did not
personally receive a grievance appeal from Plaintiff and that he was not aware that Plaintiff had
submitted a grievance appeal regarding the subject matter of this litigation.
5
In sum, nothing in the record, Plaintiff’s motion or objection, or the Magistrate
Judge’s January 10, 2018 Order indicates that the Magistrate Judge abused his
discretion, committed clear error, or erred as a matter of law in denying Plaintiff’s
motion for criminal contempt. 18 U.S.C. § 401 (providing that “[a] court of the
United States shall have power to punish” criminal contempt “by fine or
imprisonment, or both, at its discretion”).
II.
CONCLUSION
Accordingly, it is ORDERED:
1.
Plaintiff’s objection (Doc. # 54) to the Magistrate Judge’s January 10, 2018
Order (Doc. # 52) is OVERRULED.
2.
This action is referred back to the Magistrate Judge for further proceedings.
DONE this 3rd day of April, 2018.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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