Carson #091914 v. Ryan et al

Filing 208

ORDER: Plaintiff's "Request for Sanctions on Prison Officials Counsel pursuant to Federal Common Law and First Amendment" 96 is DENIED. Signed by Magistrate Judge Bridget S Bade on 9/05/2018. (REK)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Phillip Lee Carson,
Plaintiff,

10
11

ORDER

v.

12

No. CV-17-01641-PHX-ROS (BSB)

Charles L Ryan, et al.,

13

Defendants.

14
15

Plaintiff has filed a “Request for Sanctions on Prison Officials Counsel pursuant to

16

Federal Common Law and First Amendment.” (Doc. 96.) The motion is fully briefed.

17

(Docs. 154, 158.) For the reasons below, the Court denies the motion.

18

I.

Background

19

On May 26, 2017, Plaintiff filed his original complaint. (Doc. 1.) The Court

20

screened the Complaint and ordered Defendants Ryan, Linderman, and Vicklund to

21

answer Plaintiff’s claims that he was denied a religious kosher diet in violation of the

22

First Amendment and Religious Land Use and Institutionalized Persons Act

23

(“RLUIPA”), and that they have treated him differently than other similarly situated

24

prisoners in violation of his equal protection rights. (Doc. 10 at 10.)

25

On March 19, 2018, Plaintiff moved to amend or supplement his Complaint to add

26

five defendants: former Arizona Department of Corrections (“ADC”) Librarian

27

Hernandez, Legal Access Monitor Erwin, Contract Paralegal Ulibarri, Correctional

28

Officer (“CO”) III Richardson, and John Doe # 1 (Associate Deputy Warden Pitz), and to

1

add claims that his First Amendment right to “Free Speech” with his attorney was

2

violated (Counts 14-18), his equal protection rights were violated (Count 19), and that

3

Defendant Ryan, along with the proposed new Defendants, retaliated against him (Count

4

20). (Doc. 43.) Defendants responded to Plaintiff’s motion on May 11, 2018. (Doc. 95.)

5

In support of their response, Defendants filed a declaration from former ADC Librarian

6

Hernandez, which included a November 15, 2017 letter from Elizabeth Callahan, a

7

Certified Law Student at the Stanford Religious Liberty Clinic. (Doc. 95-1 at 2-75.) In

8

his pending motion for sanctions, Plaintiff claims that Defendants and their attorney

9

violated his “attorney-client Free Speech Communication” when they reproduced the

10

November 15, 2017 letter and filed it with the Court. (Doc. 96.) Plaintiff asks the Court

11

to strike or seal the letter, and to sanction the Defendants and their attorney for acting in

12

bad faith. Defendants oppose the motion. (Doc. 154.)

13

II.

Motion for Sanctions

14

A.

15

Plaintiff does not specifically rely on Rule 11 of the Federal Rules of Civil

16

Procedure to support his motion for sanctions. (Doc. 96.) However, even if the Court

17

were to construe Plaintiff’s motion as seeking Rule 11 sanctions, it would decline to

18

award such sanctions for the reasons below.

Rule 11

19

Rule 11 prohibits “‘frivolous filings’ and the use of judicial procedures as a tool

20

for ‘harassment.’” Hudson v. Moore Business Forms, Inc., 836 F.2d 1156, 1159 (9th Cir.

21

1987) (citation omitted). Rule 11(c) provides that federal courts may impose sanctions

22

on any attorney or party who, “after notice and an opportunity to respond,” has violated

23

any of the provisions of Rule 11(b). Fed. R. Civ. P. 11(c)(1). Rule 11 provides a specific

24

procedure for bringing a motion for sanctions. In particular, the movant must serve the

25

proposed motion for sanctions on the party against whom sanctions are sought, and then

26

may file the motion with the court, 21 days after service of the proposed motion, if the

27

allegedly noncompliant filing, “claim, defense, contention, or denial” is not “withdrawn

28

or appropriately corrected” within that period.

-2-

Fed. R. Civ. P. 11(c)(2).

“These

1

provisions are intended to provide a type of ‘safe harbor’ against motions under Rule 11

2

in that a party will not be subject to sanctions on the basis of another’s party’s motion

3

unless, after receiving the motion, it refused to withdraw that position or to acknowledge

4

candidly that it does not currently have evidence to support a specified allegation.”

5

Barber v. Miller, 146 F.3d 707, 710 (9th Cir.1998) (internal quotation marks omitted)).

6

Defendants assert that the Court should deny Plaintiff’s motion for sanctions

7

because he did not comply with the safe harbor provision of Rule 11. Plaintiff does not

8

dispute that he did not comply with the procedural requirements for bringing a Rule 11

9

motion.1 (Doc. 158 at 9.) Because Plaintiff did not comply with Rule 11, to the extent

10

that Plaintiff relies on Rule 11, the motion for sanctions is denied.

11

B.

12

A court has the inherent power to sanction a party or its attorney for “abusive

13

litigation practices.” Roadway Express, Inc. v. Piper, 447 U.S. 752, 765 (1980). Plaintiff

14

argues that the Court should sanction Defendants and their counsel for violating his “right

15

to confidential free speech with his counsel” by filing a copy of his correspondence with

16

his counsel in this Court.2 (Doc. 96 at 1 (citing Doc. 95-1 at 70-71).) The “‘right to hire

17

and consult an attorney is protected by the First Amendment’s guarantee of freedom of

18

speech, association and petition.’” Mothershed v. Justices of the Supreme Court, 410

19

F.3d 602, 611 (9th Cir. 2005) (quoting Denius v. Dunlap, 209 F.3d 944, 953 (7th Cir.

20

2000)).

The Court’s Inherent Authority

21

In her declaration submitted in response to the motion for sanctions, Defendant

22

Hernandez states that on November 21, 2017, Plaintiff submitted a Request/Authorization

23

for Non-Qualified/Non-Legal Copying seeking copies of over 600 pages of documents,

24
1

26

Plaintiff, instead, states that he needs counsel to assist with his case. (Doc. 158 at 9.)
The Court has denied Plaintiff’s previous request for appointment of counsel (Doc. 156),
and Plaintiff has not provided any basis for the Court to reconsider that ruling or to
appoint counsel at this point.

27

2

25

28

Plaintiff’s motion refers to Zeba Hug with the “Legal Mills Clinic.” (Doc. 96 at 1.)
However, the document he cites is a November 15, 2017 letter to Plaintiff from Elizabeth
Callahan, a Certified Law Student at the Stanford Religious Liberty Clinic. (Doc. 95-1 at
70-71.) Zeba Hug is copied on letter as the “Clinical Supervising Attorney.” (Id. at 71.)
-3-

1

including 561 pages of “religious documents requested by attorney.” (Doc. 154, Ex A at

2

¶ 5.) Upon receiving Plaintiff’s request, Hernandez asked Plaintiff why he needed over

3

600 pages copied. (Id. at ¶ 6.) Plaintiff responded that the copies were for his attorney

4

and told Hernandez to read the November 15, 2017 letter from the Stanford Religious

5

Liberty Clinic (“the Clinic”). (Id.) Hernandez states that she read the letter and told

6

Plaintiff that it did not appear that the Clinic wanted copies of the documents that he was

7

requesting. (Id. at ¶ 7.)3 Hernandez states that Plaintiff insisted that he needed the copies

8

that he had requested, and told her to call the Clinic to confirm. (Doc. 154, Ex. A at ¶ 7.)

9

Hernandez states that she called the Clinic and copied the letter for her “personal file” to

10

document her interactions with Plaintiff and her call with the Clinic. (Id. at ¶ 8.)

11

Defendants argue that the November 15, 2017 letter was not protected by attorney-

12

client privilege and, alternatively, Plaintiff waived any privilege by providing the letter to

13

Hernandez. (Doc. 154 at 4.) Plaintiff asserts that “ADC policy” required him to show

14

“documentation to [the] librarian that his requests for copies are actually being made for

15

counsel with the names and addresses of said counsel.” (Doc. 158 at 3.) Plaintiff asserts

16

that his compliance with this policy did not automatically waive his attorney-client

17

privilege in the letter. (Id.) Plaintiff also asserts that he is not claiming a violation of the

18

attorney-client privilege, but instead is asserting a First Amendment violation. The

19

Court, therefore, will not consider whether to impose sanctions based on Plaintiff’s

20

allegation that Defendants violated the attorney-client privilege by filing the November

21

15, 2017 letter. The Court also declines to consider sanctions based on an alleged

22

violation of the First Amendment, as set forth below.

23

In his proposed Amended Complaint, Plaintiff alleges that Defendant Hernandez

24

violated his First Amendment rights by reading his legal mail and determining what

25

materials to copy and provide to counsel. (See Doc. 163 at 5-6.) In an Order and Report

26

and Recommendation that screened the proposed Amended Complaint, the assigned

27

3

28

The letter stated that Plaintiff had contacted the Clinic about his concern with his
kosher diet, in response the Clinic asked Plaintiff to respond to twelve questions, and
asked Plaintiff to provide copies of his grievances showing that he had exhausted his
administrative remedies. (Doc. 95-1 at 71.)
-4-

1

magistrate judge recommended that the Court order Defendant Hernandez to respond to

2

that claim. (Doc. 163 at 10.) That recommendation is pending a ruling. Because

3

Plaintiff states that he is not claiming a violation of his attorney-client privilege in the

4

pending motion for sanctions, and the merits of Plaintiff’s First Amendment claim

5

against Defendant Hernandez is asserted in the proposed Amended Complaint, Plaintiff’s

6

request for sanctions against Defendants based on the same alleged First Amendment

7

violation is redundant. Therefore, the Court will not assert its inherent authority to

8

sanction Defendants and will deny the motion for sanctions. Additionally, as discussed

9

below, the Court finds no bad faith on the part of counsel and, therefore, denies the

10

request for sanctions against counsel.

11

C.

12

Liberally construing the motion for sanctions, the Court finds that Plaintiff seeks

13

sanctions pursuant to 18 U.S.C. § 1927. (Doc. 96 at 2 (citing Gomez v. Vernon, 255 F.3d

14

1118, 1131-34 (9th Cir. 2001) (affirming sanctions under 18 U.S.C. § 1927).) Section

15

1927 provides that the Court may sanction any attorney who vexatiously multiplies

16

proceedings:

17
18
19
20

18 U.S.C. § 1927

Any attorney or other person admitted to conduct cases in any
court of the United States or any Territory thereof who so
multiplies the proceedings in any case unreasonably and
vexatiously may be required by the court to satisfy personally
the excess costs, expenses, and attorneys’ fees reasonably
incurred because of such conduct.

21

18 U.S.C. § 1927. However, sanctions under § 1927 “must be supported by a finding of

22

subjective bad faith.” New Alaska Dev. Corp. v. Guetschow, 869 F.2d 1298, 1306 (9th

23

Cir. 1989). “Bad faith is present when an attorney knowingly or recklessly raises a

24

frivolous argument, . . . or argues a meritorious claim for the purposes of harassing an

25

opponent. . . . .” Estate of Blas v. Winkler, 792 F.2d 858, 860 (9th Cir. 1986). In the

26

Ninth Circuit, “section [1927] authorizes sanctions only for the ‘multipli[cation of]

27

proceedings,’ it applies only to unnecessary filings and tactics once a lawsuit has begun.”

28

In re Keegan Mgmt. Co., Sec. Litig., 78 F.3d 431, 435 (9th Cir. 1996).

-5-

1

Plaintiff asserts that it “is beyond [his] comprehension” how Defendants’ counsel

2

was able to file the November 15, 2017 letter with the Court. (Doc. 96 at 1.) In her

3

declaration submitted with Defendants’ response to the motion for sanctions, Defendants’

4

attorney states that the ADC staff provided the in response to her request for documents

5

to respond to Plaintiff’s motion to amend. (Doc. 154, Ex. B at ¶ 3.) Defendants’ counsel

6

states that, at that time, she understood that any attorney-client privilege had been waived

7

when Plaintiff provided the letter to Defendant Hernandez to read and when Plaintiff told

8

Defendant Hernandez to contact the Clinic. (Id. at ¶ 5.) Counsel further states that in

9

preparing the response to the motion for sanctions, she learned that Defendant Hernandez

10

made a copy of the letter to use to record notes of her conversation with the Clinic. (Id.

11

at ¶ 6.) Defendant Hernandez put the copy of the letter in her personal file to document

12

her communications with Plaintiff in case he filed a complaint or grievance and she was

13

required to respond. (Id.) Defendant Hernandez stated that her usual practice was to

14

shred documents in her personal filed every six months to twelve months if no issues

15

arose from the interaction to which her documents pertained. (Doc. 154, Ex. A at ¶ 9.)

16

Defendants’ counsel states that she was not aware that the letter attached to Defendant

17

Hernandez’s declaration came from her personal file. (Id. at ¶ 10.)

18

In Gomez, the court upheld the imposition of sanctions on state prison officials and

19

their attorneys under § 1927 based on the district court’s finding that “[u]nnecessary

20

litigation was created by the series of events of secretly acquiring, reading, retaining,

21

sharing information with representatives of [the Department], and using the information

22

for potential tactical advantage instead of promptly notifying opposing counsel and/or

23

submitting the documents to the Court. . . . .” Gomez, 255 F3d at 1134-35. Unlike

24

Gomez, there is no evidence that Defendants’ counsel authorized or encouraged any ADC

25

staff, including Defendant Hernandez, to copy the November 15, 2017 letter. (Doc. 154,

26

Ex. B at ¶ 8.) Additionally, aside from Plaintiff’s motion for sanctions, unnecessary

27

litigation has not resulted from Defendants’ filing of the November 15, 2017 letter. Upon

28

review of the briefing on the motion for sanctions, the Court finds no basis to conclude

-6-

1

that Defendants’ counsel acted in bad faith in filing the letter in support of Defendants’

2

response to Plaintiff’s motion to amend.

3

Plaintiff also asserts that by obtaining the November 15, 2017 letter, Defendants

4

“obtained an unfair advantage in defending themselves against” his claims. (Doc. 96

5

at 4.) The letter, however, does not discuss Plaintiff’s claims related to his “kosher diet

6

concern” with any particularity or discuss litigation strategy.

7

Rather, its asks Plaintiff to provide background information related to his “kosher diet

8

concern,” including how Plaintiff became a member of his faith, what kind of meals the

9

prison provided him, and similar information. (Id.) The letter starts by stating that the

10

Clinic “would like to understand your situation better” and concludes by stating that “to

11

be clear, [the Clinic is] writing to learn more about your case. We are not offering to

12

take on your case at this point.” (Id. at 71) (emphasis in original). The letter was

13

general in nature and did not include any information specific to Plaintiff’s claims that

14

gave Defendants any type of advantage in this case.

(Doc. 95-1 at 70-71.)

15

Plaintiff asks the Court to strike or seal the letter. (Doc. 96 at 2.) The letter does

16

not disclose any personal or private information about Plaintiff. At most, it indicates that

17

he had filed a lawsuit in an unidentified court about his “kosher diet concerns.” (Id. at

18

70-71.) By the time the letter was filed in this Court, in May 2018, Plaintiff’s lawsuit had

19

been pending in this Court for nearly a year and his allegations regarding his kosher diet

20

were included in his Complaint and other public filings in this Court. Thus, nothing in

21

the content of the letter indicates that it should be placed under seal or struck from the

22

record. See LRCiv. 5.6(b); Kamakana v. City & County of Honolulu, 447 F.3d 1172,

23

1178 (9th Cir. 2006) (stating that to file a document under seal, the party seeking to file

24

the sealed document generally must satisfy a “compelling reasons” standard).

25

III.

Conclusion

26
27
28

-7-

1

Upon review of the briefing on the motion for sanctions and of the November 15,

2

2017 letter at issue in Plaintiff’s motion, the Court finds no basis to enter any of the

3

sanctions that Plaintiff requests against Defendants or their attorney.4

4

Accordingly,

5

IT IS ORDERED that Plaintiff’s “Request for Sanctions on Prison Officials

6

Counsel pursuant to Federal Common Law and First Amendment” (Doc. 96) is

7

DENIED.

8

Dated this 5th day of September, 2018.

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

4

Plaintiff suggests that Defendants’ counsel violated Brady v. Maryland, 373 U.S. 83
(1963) because she failed to disclose the November 15, 2017 letter to him during
discovery. (Doc. 96 at 5.) Plaintiff’s assertion lacks merit because the Brady disclosure
rule applies in criminal matters and has not been extended to civil cases. Millspaugh v.
Cnty. Dept. of Pub. Welfare of Wabash Cnty., 937 F.2d 1172, 1175 n.† (7th Cir. 1991)
(stating that “[t]here is so far no parallel to Brady in civil litigation.”).
-8-