Fifth Circuit: Federal Prisoner Loses Retaliation Suit but U.S. Attorney Sanctioned

Loaded on Aug. 15, 2008 by John Dannenberg published in Prison Legal News August, 2008, page 18

Filed under: Prosecutor/Attorney General Misconduct, Retaliation, Retaliation for Filing Grievances, Discovery, Sanctions, Administrative Procedures Act (Federal). Location: Texas.

by John E. Dannenberg

A federal prisoner in Texas sued prison officials for retaliating against him for filing grievances. While the court found for the defendants, it nonetheless sanctioned two Assistant U.S. Attorneys $500 for procedural discovery errors, payable to the plaintiff. On appeal the Fifth Circuit Court of Appeals upheld the verdict, except that it modified and redirected payment of the sanction to the district court.

PLN contributing writer Brandon Sample filed a pro se federal civil rights action in U.S. District Court (WD Tex.) against Bureau of Prisons (BOP) employees, alleging they had retaliated against him for filing grievances while incarcerated at a prison in Bastrop, Texas. During the summary judgment phase Sample lost his bid for injunctive relief to require BOP director Harley Lappin to develop new policies forbidding retaliation and requiring such training for guards. The balance of Sample’s claims and his request for damages were resolved against him in a two-day bench trial.

Both parties appealed. The Fifth Circuit rejected Sample’s complaint that the district court’s findings of fact lacked sufficient detail. Since witness credibility was the central issue, the court’s finding for the defendant conclusively resolved the contradictory evidence. Sample’s second complaint, that the trial court should have granted his request for a post-trial motion for judicial notice of added facts, was rejected because there was no precedent for such an action. The trial court said it had considered “all the evidence.”

Sample’s claim of error for not being allowed to conduct discovery on persons not yet served with the complaint failed as well; the Fifth Circuit called this “unfathomable.” He also lost his complaint that the trial court had incorrectly granted defendant Lappin sovereign immunity due to an Administrative Procedures Act waiver (5 U.S.C. § 702); with no final agency action, as here, that was not applicable.

Finally, the Court of Appeals rejected Sample’s claim that the district court had abused its discretion when denying his motion for contempt and costs arising from efforts to serve one of the defendants. The Fifth Circuit noted the defendant had complied when challenged, and that the court was within its “wide discretion” to deny the motion.

District Court Judge Sam Sparks had sanctioned two Assistant U.S. Attorneys, Winstanley Luke and Susan Kilgore, for abuse during the discovery process. Two problems resulted. First, the court sanctioned a later-appearing attorney for something an earlier attorney had done, which was corrected on appeal. Further, the trial court had awarded the monetary sanction to Sample. This was modified to redirect the payment to the district court. In sum, the Fifth Circuit affirmed the lower court’s ruling with minor changes.

Misconduct by government lawyers representing prison officials is all too common; what is unusual is for a court to sanction their unethical behavior. That the court’s sanction was affirmed on appeal is all the more unusual, but not unexpectedly the appellate court designated its opinion as “unpublished.” See: Sample v. Miles, 239 Fed.Appx. 14 (5th Cir. 2007), cert denied. (unpublished).