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Ninth Circuit Assesses Double Costs, Fees, and Damages Against Montana Prison Officials
Following remand in Pepperling v. Crist, 678 F.2d 787 (9th Cir. 1982), Montana prison officials appealed the Ninth Circuit's nude photograph ruling. The appeal was dismissed "because it is frivolous and brought in bad faith to vex, annoy, and delay." The court then awarded "double costs and damages, to include attorney fees' and remanded to the district court to determine the amounts. See: Pepperling v. Risley, 739 F.2d 443 (9th Cir. 1984).
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Related legal case
Pepperling v. Risley
| Year | 1984 |
|---|---|
| Cite | 739 F.2d 443 (9th Cir. 1984) |
| Level | Court of Appeals |
| Attorney Fees | 0 |
| Damages | 0 |
Pepperling v. Risley, 739 F.2d 443 (9th Cir. 08/01/1984)
[1] UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[2] No. 83-3862
[3] 1984, 739 F.2d 443
[4] August 1, 1984
[5] RICHARD C. PEPPERLING, ET AL., PLAINTIFFS-APPELLEES,
v.
HENRY RISLEY, WARDEN, MONTANA STATE PRISON, ET AL., DEFENDANTS-APPELLANTS
[6] Appeal from the United States District Court for the District of Montana Hon. William D. Murray, Presiding.
[7] Goodwin and Fletcher, Circuit Judges and Panner,*fn* District Judge.
[8] Order FOR PUBLICATION
[9] In Pepperling v. Crist, 678 F.2d 787 (9th Cir. 1982), we held that the warden's blanket prohibition against prisoners' receipt of nude photographs of their wives and girlfriends was invalid as overbroad and ordered that a less restrictive alternative be adopted. The warden neither sought review of our decision by this court on a petition for rehearing or rehearing en banc nor review by the Supreme Court. After remand, he continued enforcing the same rule on nude photographs that we had invalidated and refused to implement a less restrictive alternative.The warden presented no new arguments before the district court, but merely continued to argue that this court's final order was erroneous. The district court reaffirmed our order by setting aside the offending regulation, but leaving open to the prison officials the establishment of a less restrictive regulation. The warden appeals.
[10] We dismiss the appeal because it is frivolous and brought in bad faith to vex, annoy, and delay. See De Witt v. Western Pacific, 719 F.2d 1448, 1451 (9th Cir. 1983). Accordingly, we award double costs and damages, to include attorneys' fees, to plaintiffs. 28 U.S.C. § 1912 (1982); Fed. R. App. P. 38. We remand to the district court to determine the amounts. See De Witt, 719 F.2d at 1452.
[11] APPEAL DISMISSED and REMANDED.
[12] Disposition
[13] APPEAL DISMISSED and REMANDED.
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Judges Footnotes
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[14] *fn* The Hon. Owen M. Panner, United States District Judge for the District of Oregon, sitting by designation.
[1] UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[2] No. 83-3862
[3] 1984, 739 F.2d 443
[4] August 1, 1984
[5] RICHARD C. PEPPERLING, ET AL., PLAINTIFFS-APPELLEES,
v.
HENRY RISLEY, WARDEN, MONTANA STATE PRISON, ET AL., DEFENDANTS-APPELLANTS
[6] Appeal from the United States District Court for the District of Montana Hon. William D. Murray, Presiding.
[7] Goodwin and Fletcher, Circuit Judges and Panner,*fn* District Judge.
[8] Order FOR PUBLICATION
[9] In Pepperling v. Crist, 678 F.2d 787 (9th Cir. 1982), we held that the warden's blanket prohibition against prisoners' receipt of nude photographs of their wives and girlfriends was invalid as overbroad and ordered that a less restrictive alternative be adopted. The warden neither sought review of our decision by this court on a petition for rehearing or rehearing en banc nor review by the Supreme Court. After remand, he continued enforcing the same rule on nude photographs that we had invalidated and refused to implement a less restrictive alternative.The warden presented no new arguments before the district court, but merely continued to argue that this court's final order was erroneous. The district court reaffirmed our order by setting aside the offending regulation, but leaving open to the prison officials the establishment of a less restrictive regulation. The warden appeals.
[10] We dismiss the appeal because it is frivolous and brought in bad faith to vex, annoy, and delay. See De Witt v. Western Pacific, 719 F.2d 1448, 1451 (9th Cir. 1983). Accordingly, we award double costs and damages, to include attorneys' fees, to plaintiffs. 28 U.S.C. § 1912 (1982); Fed. R. App. P. 38. We remand to the district court to determine the amounts. See De Witt, 719 F.2d at 1452.
[11] APPEAL DISMISSED and REMANDED.
[12] Disposition
[13] APPEAL DISMISSED and REMANDED.
--------------------------------------------------------------------------------
Judges Footnotes
--------------------------------------------------------------------------------
[14] *fn* The Hon. Owen M. Panner, United States District Judge for the District of Oregon, sitting by designation.