Bradshaw v. Dahlstrom

• Court: District Court, D. Alaska
• Decided: March 30, 2023
• Docket: 3:20-cv-00292
• Status: Unknown

Opinion

1 IN THE UNITED STATES DISTRICT COURT

2 FOR THE DISTRICT OF ALASKA

4 JOSHUA JAMES BRADSHAW,

5 Plaintiff,

6 v. No. 3:20-cv-00292-SLG-KFR

7 NANCY DAHLSTROM, et al.,

8 Defendants. 9 REPORT AND RECOMMENDATION Re PLAINTIFF’S 10 MOTION TO HOLD DEFENDANT IN CONTEMPT 11 The Court recommends Plaintiff’s Motion to Hold Defendants in Contempt be 12 DENIED. Plaintiff fails to meet his burden in proving that the statement in question 13 made by Defense Counsel was knowingly and intentionally false, or that it was made 14 with bad intent or for an improper purpose to constitute bad faith. Because the 15 Court recommends denial of Plaintiff’s motion, no sanction is warranted. 16 I. Procedural History 17 On November 16, 2020, pro se Plaintiff, Joshua James Bradshaw, filed a 18 Complaint against the Commissioner of the Alaska Department of Corrections (DOC), 19 Nancy Dahlstrom; the Governor of Alaska, Michael Dunleavy; and DOC alleging 20 violations of 42 U.S.C. § 1983 and the Alaska Constitution.1 On February 22, 2021, 21 the Court issued a screening order dismissing Mr. Bradshaw’s complaint without 22 prejudice, advising him of the elements he must plead if he chose to amend his 23 complaint, and granting him time to do so.2 24 On February 23, 2021, Plaintiff filed an “Application for temporary restraining 25 order and preliminary injunction,” which the Court denied.3 On March 22, 2021, 26

27 1 Doc. 1. Mr. Bradshaw also filed a Memorandum in Support of Complaint at Doc. 4. 2 Doc. 6. 28 3 Docs. 7 and 12. 1 while awaiting a ruling on his application for a restraining order, Plaintiff filed his 2 First Amended Complaint.4 On April 5, 2021, the Court issued an order provisionally 3 appointing counsel and stayed the screening of Plaintiff’s First Amended Complaint 4 to give counsel time to meet with his client, file a notice of appearance, and review 5 and amend the complaint again if needed.5 Counsel for Plaintiff filed a Notice of 6 Appearance on April 12, 2021, followed by a Status Report on July 1, 2021, advising 7 the Court that Plaintiff wished to proceed on his First Amended Complaint as 8 previously filed.6 9 On October 12, 2021, Defendants filed a Motion to Dismiss.7 Plaintiff 10 responded in opposition, and Defendants responded with a motion to strike that 11 response.8 Plaintiff opposed Defendants’ Motion to Strike.9 After counsel for 12 Plaintiff filed a Rule 11 certification and a Notice of Withdrawal of Counsel, the Court 13 ordered counsel’s withdrawal and denied Defendants’ motion to strike.10 Defendants 14 replied to Plaintiff’s response to Defendants’ motion to dismiss, followed by a 15 supplemental response by Plaintiff.11 Defendants filed a motion to strike Plaintiff’s 16 supplemental response, and Plaintiff again opposed.12 17 After referral from the District Court,13 this Court sua sponte ordered 18 supplemental briefing on the issue of mootness.14 Specifically, the Court asked the 19 parties to address whether DOC’s revocation of the policies Plaintiff alleged to be 20

21 4 Doc. 10. 22 5 Doc. 13. 6 Docs. 14 and 16. 23 7 Doc. 24. 8 Docs. 25-29. 24 9 Doc. 30. 10 Docs. 32-35. 25 11 Docs. 36-37. 26 12 Docs. 38-39. 13 Docs. 40-41. 27 14 Doc. 42; see Students for a Conservative Am. v. Greenwood, 391 F.3d 978 (9th Cir. 2004) (“We have an independent duty to consider sua sponte whether a case is moot.”) (citation 28 omitted). 1 unconstitutional in his First Amended Complaint rendered his complaint moot.15 The 2 parties complied.16 3 The Court considered Defendants’ first Motion to Dismiss at Docket 24 and 4 recommended dismissing as moot each of the claims raised in Plaintiff’s First 5 Amended Complaint where he sought injunctive relief; specifically, his official 6 capacity claim against then DOC Commissioner Dahlstrom in Claim One,17 and 7 Claims Two and Three against Governor Dunleavy. The Court also recommended 8 granting Defendants’ motion as it related to the individual capacity claim against 9 then Commissioner Dahlstrom, but with leave to amend his complaint for that 10 distinct claim only. The District Court adopted the Court’s Report and 11 Recommendation.18 12 Plaintiff filed his Second Amended Complaint on October 14, 2022, 13 maintaining that Defendant Dahlstrom, in her individual capacity, violated his First 14 Amendment right to free exercise of religion under the Constitution.19 Defendant 15 responded with a Motion to Dismiss the Second Amended Complaint.20 Plaintiff 16 responded in opposition.21 17 Shortly after, Plaintiff filed a Motion to Compel seeking an order compelling

18 15 Id. 19 16 Docs. 44 and 49. 17 Id. Plaintiff originally named DOC Commissioner Nancy Dahlstrom in his First Amended 20 Complaint. On May 22, 2022, Commissioner Dahlstrom resigned. Pursuant to Fed. R. Civ. P. 26(d), Commissioner Winkelman was “automatically substituted as a party” and the Court 21 considered her the proper defendant for Plaintiff’s original official capacity claim against 22 the DOC Commissioner. However, because Plaintiff also sued former Commissioner Dahlstrom for money damages in her individual capacity, she remained a party as it related 23 to that distinct claim. 18 Doc. 53. 24 19 Doc. 54. Plaintiff captioned his Second Amended Complaint “Joshua James Bradshaw v. Nancy Dahlstrom, et al.” However, former Commissioner Dahlstrom is the only remaining 25 defendant in this matter and the only person named in Plaintiff’s Second Amended 26 Complaint, thereby obviating the need for the use of the phrase “et al.” Defendant utilized the same case caption, but the reply seeks dismissal by former Commissioner Dahlstrom 27 only. As such, Defendant will be referred to in the singular unless otherwise noted. 20 Docs. 56 and 57. 28 21 Docs. 63, 64, 66. 1 DOC to return legal material confiscated as contraband by DOC when Plaintiff was 2 relocated to a different correctional center.22 Defendant responded in opposition. 3 On January 24, 2023, Plaintiff filed supplemental information relating to his Motion 4 to Compel,23 as well as a Status Report pursuant to the Court’s directive.24 This Court 5 considered Plaintiff’s Second Amended Complaint, Defendant’s Motion to Dismiss 6 Plaintiff’s Second Amended Complaint, and Plaintiff’s Motion to Compel, and 7 recommended granting Defendant’s Motion to Dismiss and denying Plaintiff’s 8 Motion to Compel.25 9 On January 30, 2023, Plaintiff filed a Motion to Hold Defendants in Contempt, 10 Defendant responded in opposition, and Plaintiff replied.26 The Court now considers 11 all filings related to Plaintiff’s Motion to Hold Defendants in Contempt. 12 II. Legal Standard 13 a. Framework for Imposing Sanctions under Inherent Authority 14 Federal courts possess certain inherent powers, not conferred by rule or 15 statute, to manage their own affairs to achieve the orderly and expeditious 16 disposition of cases, which includes the ability to fashion an appropriate sanction 17 for conduct that abuses the judicial process.27 This power includes the ability to 18 punish conduct before the court as well as actions beyond the court's confines, 19 regardless of whether that conduct interfered with courtroom proceedings.28 A 20 federal court may, among other things, dismiss a case in its entirety, bar witnesses,

21 22 DOC Procedure and Policy 811.05 states that a “prisoner may not possess property which 22 belongs to another prisoner under any circumstances.” DOC confiscated 46 documents of Plaintiff’s which contained documents from three other inmates’ criminal matters and 23 their DOC institutional files. Plaintiff claimed that they were reference materials given to him by his lawyer. 24 23 Doc. 67. 24 Docs. 65 and 68. 25 25 Doc. 71. 26 26 Docs. 69, 70, 72. 27 Goodyear Tire & Rubber Co. v. Haeger, ––– U.S. ––––, 137 S. Ct. 1178, 1186 (2017), 27 (quoting Link v. Wabash R. Co., 370 U.S. 626, 630–31, (1962)); see also America Unites for Kids v. Rousseau, 985 F.3d 1075, 1088 (9th Cir. 2021). 28 28 Id. (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 44-45 (1991). 1 exclude other evidence, award attorneys’ fees, or assess fines.29 Although it is 2 preferable that courts use—and first consider—the range of federal rules and statutes 3 dealing with misconduct and abuse of the judicial system, “courts may rely upon 4 their inherent powers to sanction bad-faith conduct even where such statutes and 5 rules are in place.”30 “Because of their very potency, inherent powers must be 6 exercised with restraint and discretion.”31 7 When acting under its inherent authority to impose a sanction, as opposed to 8 applying a rule or statute, a court must find either: (1) a willful violation of a court 9 order; or (2) bad faith.32 A sanction may be awarded either for willful disobedience 10 of a court order or when a party has acted in bad faith, vexatiously, wantonly, or for 11 oppressive reasons.33 “A determination that a party was willfully disobedient is 12 different from a finding that a party acted in bad faith. Either supports the 13 imposition of sanctions.”34 14 Bad faith, including conduct done vexatiously, wantonly, or for oppressive 15 reasons, requires proof of bad intent or improper purpose.35 Bad faith also is not 16 restricted to situations where the action was filed in bad faith, but rather, may be 17 found in the conduct of the litigation.36 Finally, because a federal court's inherent 18

19 29 F.J. Hanshaw Enterprises, Inc. v. Emerald River Development, Inc., 244 F.3d 1128, 1136 (9th Cir. 2001). 20 30 Id. at 1136–37; see also Chambers, 501 U.S. at 50 (“[W]hen there is bad-faith conduct in the course of litigation that could be adequately sanctioned under the Rules, the court 21 ordinarily should rely on the Rules rather than the inherent power. But if in the informed 22 discretion of the court, neither the statute nor the Rules are up to the task, the court may safely rely on its inherent power.”). 23 31 Chambers, 501 U.S. at 44. 32 See Evon v. Law Officer of Sidney Mickell, 688 F.3d 1015, 1035 (9th Cir. 2012). The Court 24 notes that there are no allegations of Defendant, or Defendant’s Counsel, violating any Court order, therefore the Court focuses its analysis specifically on whether any 25 statements were made in bad faith. 26 33 See Roadway Exp., Inc. v. Piper, 447 U.S. 752, 766 (1980); Fink v. Gomez, 239 F.3d 989, 991 (9th Cir. 2001). 27 34 Evon, 688 F.3d at 1035. 35 Id.; Fink, 239 F.3d at 993–94. 28 36 See Roadway Exp., 447 U.S. at 766. 1 powers are so potent, the court must make an explicit finding that the sanctioned 2 party's conduct “constituted or was tantamount to bad faith” when imposing 3 sanctions based on such conduct.37 4 b. Alaska Local Rules 5 Alaska Local Civil Rule 1.1(c)(4) requires parties and their lawyers to conform 6 to the applicable rules of ethics and professional conduct. Alaska Local Civil Rule 7 11.2(a) empowers the Court to impose sanctions for violations of the Local Civil 8 Rules. Alaska Local Civil Rule 83.1 states, “[i]n all professional functions a lawyer 9 should be competent, prompt, and diligent.” Alaska Rule of Professional Conduct 3.3 10 states, “a lawyer shall not knowingly make a false statement of fact or law to a 11 tribunal.” 12 III. Discussion and Analysis 13 In his Motion to Hold Defendants in Contempt, Plaintiff asserts that Counsel 14 for Defendant, Ms. Mlcek, made a “knowing and intentional false statement, under 15 oath and in a sworn declaration to the Court”38 as part of Defendant’s Response to 16 Plaintiff’s Motion to Compel at Docket 66. Specifically, Plaintiff takes issue with Ms. 17 Mlcek’s statement: 18 “[o]n January 10, 2023, I contacted DOC to obtain a recording of the call 19 from Mr. Bradshaw to create a transcript for the Court but was 20 informed that the call was not recorded because Mr. Bradshaw misrepresented his call to me as privileged. See Declaration Exhibit A, 21 phone call recording e-mail exchange with DOC.”39 22 Plaintiff next refers to Exhibit A, an e-mail exchange between a DOC official 23 and Ms. Mlcek, which informed Ms. Mlcek that DOC was “not able to send [Ms. 24 Mlcek] a recording of the call as it is privileged call, and our system doesn’t record 25 26 37 See Primus Auto. Fin. Servs., Inc. v. Batarse, 115 F.3d 644, 648–50 (9th Cir. 1997) (quoting 27 Roadway Exp., 447 U.S. at 767); see also Rousseau, 985 F.3d at 1090. 38 Doc. 69 at 1. 28 39 Id. at 2 (quoting Doc. 66-3). 1 them.”40 Plaintiff asserts that this email proves Ms. Mlcek’s statement is false and 2 that she made this statement knowing it was false.41 Plaintiff claims Ms. Mlcek’s 3 statement was “made in bad faith in what appears to be an attempt to make 4 [Plaintiff] appear dishonest and underhanded as he litigates this action pro se.”42 5 For relief, Plaintiff asks the Court to hold Defendants in contempt and issue 6 appropriate sanctions pursuant to the Court’s “Inherent Power and all applicable 7 Federal Statutes and Court Rules.”43 Additionally, Plaintiff asks the Court to strike 8 Defense counsel’s declaration from the record and remove or disqualify her as 9 Defendant’s counsel.44 10 In response, Defendant asks the Court to deny Plaintiff’s motion for several 11 reasons. First, Defendant asserts that the statement in question was made “upon 12 information and belief held at the time [the] statement was drafted, [and that] 13 undersigned counsel understood the assertion made therein regarding the reason 14 why the phone call was not recorded to be true and accurate.”45 Defendant goes on 15 to argue that “[a]fter receiving and reviewing [Plaintiff’s] Motion to Hold Defendant 16 in Contempt, undersigned counsel contacted DOC and learned that her 17 understanding of privileged prisoner calls was mistaken.46 18 Second, Defendant contends that the statement was not made in bad faith to 19 intentionally mislead the court, and that, “[o]ther than his own opinion,” Plaintiff 20 “provides no evidence that undersigned counsel acted intentionally, and not 21 mistakenly.”47 Lastly, Defendant asserts that Plaintiff fails to articulate how 22 “undersigned counsel’s (mistaken) assertion regarding when prisoner phone calls 23 40 Id. (quoting Doc. 66-5). 24 41 Id. at 2. 42 Id. 25 43 Id. at 1. Specifically, Plaintiff cites to Alaska Local Rules of Civil Procedure 1.1(c)(4), 26 11.2, 83.1, and Alaska Rule of Professional Conduct 3.3. See Doc. 72 at 3-4. 44 Id. at 4. 27 45 Doc. 70 at 2. 46 Id. 28 47 Id. at 2-3. 1 are recorded has any bearing on the issue currently before the Court – whether DOC 2 should be compelled to allow [Plaintiff] to possess documents from three other 3 inmates’ criminal matters and DOC institutional files.”48 Further, Defendant states 4 that “no party’s credibility may bear on the Court’s decision [in determining the 5 Motion to Dismiss Plaintiff’s Second Amended Complaint], and, thus, the Defendant 6 would reap no benefit from an attempt to discredit [Plaintiff].”49 7 As cited by Plaintiff, “[sanctions] are appropriate where the Court finds that 8 a party has behaved in a way that constitutes or is tantamount to bad faith.”50 9 “Actions constituting a fraud upon the court are also sufficient to support a bad faith 10 finding.”51 The Court makes no such findings of bad faith in this case. 11 The Court accepts Defendant’s explanation as to the mistaken statement Ms. 12 Mlcek made about her understanding of the information DOC relayed to her 13 regarding Plaintiff’s privileged calls. There is no evidence in the record that Ms. 14 Mlcek acted intentionally, and not mistakenly as Ms. Mlcek admitted in her 15 opposition to Plaintiff’s motion for sanctions.52 Instead, Plaintiff merely offers his 16 opinion that the statement was made in bad faith, which is insufficient to invoke the 17 Court’s inherent power to sanction. 18 Plaintiff has not met his burden in proving Ms. Mlcek’s statement was made 19 with bad intent or for an improper purpose,53 nor is there any evidence in the record 20 sufficient to demonstrate that there has been an attempt to commit fraud upon the 21 Court.54 Indeed, as argued by Defendant, Ms. Mlcek would have no reason to attempt 22 to undermine Plaintiff’s credibility. This is so because any character attack Plaintiff 23 may have perceived as “an attempt to make [Plaintiff] appear dishonest and 24 48 Id. at 3. 25 49 Id. at 3. 26 50 Leon v. IDX Sys. Corp., 464 F.3d 951, 961 (9th Cir. 2006). 51 Chambers, 501 U.S. at 46. 27 52 Id. at 2-3. 53 See Evon, 688 F.3d at 1035; see also Fink, 239 F.3d at 993–94. 28 54 Chambers, 501 U.S. at 46. 1 underhanded as he litigates this action pro se” based on Ms. Mlcek’s admittedly 2 mistaken statement regarding her conversation with DOC security officials would 3 have no effect on this Court’s Report and Recommendation to the District Court, nor 4 the District Court’s ultimate decision on Defendant’s Motion to Dismiss Plaintiff’s 5 Second Amended Complaint.55 6 Since the Court finds the challenged statement was not “knowingly false,” nor 7 was there any attempt to commit fraud upon the Court, the Court sees no violation 8 of Alaska Rules of Professional Conduct or the Local Rules. Furthermore, Ms. Mlcek’s 9 response to Plaintiff’s motion demonstrates that she followed up on the issue and 10 identified her mistake. As stated in Defendant’s opposition, “[a]fter receiving and 11 reviewing [Plaintiff’s] Motion to Hold Defendant in Contempt, [Ms. Mlcek] contacted 12 DOC and learned that her understanding of privileged prisoner calls was 13 mistaken.”56 The Court finds that such actions demonstrate Ms. Mlcek’s competency, 14 promptness, and diligence, and are in accordance with the Local Civil Rules.57 15 Finally, because the Court finds no evidence of bad faith on Ms. Mlcek’s part, 16 nor any evidence of a knowingly false statement, sanctions are unwarranted. 17 // 18 // 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26

27 55 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). 56 Doc. 70 at 2. 28 57 Alaska Local Civil Rule 83.1. 1 IV. Conclusion 2 The Court recommends DENYING Plaintiff’s Motion to Hold Defendants in 3 Contempt at Docket 69. Plaintiff fails to prove that the statement in question made 4 by Ms. Mlcek was knowingly and intentionally false, made with bad intent or for an 5 improper purpose to constitute bad faith, as opposed to simply being an honest 6 mistake based upon a lack of knowledge. Since the Court finds no evidence of bad 7 faith on Ms. Mlcek’s part, the Court recommends no sanctions be issued. 8 9 DATED this 30th of March 2023, at Anchorage, Alaska. 10 s/ Kyle F. Reardon KYLE F. REARDON 11 United States Magistrate Judge District of Alaska 12 13 NOTICE OF RIGHT TO OBJECT 14 Under 28 U.S.C. § 636(b)(1), a district court may designate a magistrate judge 15 to hear and determine matters pending before the Court. For dispositive matters, a 16 magistrate judge reports findings of fact and provides recommendations to the 17 presiding district court judge.58 A district court judge may accept, reject, or modify, 18 in whole or in part, the magistrate judge’s order.59 19 A party may file written objections to the magistrate judge’s order within 14 20 fourteen days.60 Objections and responses are limited to five (5) pages in length and 21 should not merely reargue positions previously presented. Rather, objections and 22 responses should specifically identify the findings or recommendations objected to, 23 the basis of the objection, and any legal authority in support. Reports and 24 recommendations are not appealable orders. Any notice of appeal pursuant to Fed. 25 R. App. P. 4(a)(1) should not be filed until entry of the district court’s judgment.61 26 58 28 U.S.C. § 636(b)(1)(B). 27 59 28 U.S.C. § 636(b)(1)(C). 60 Id. 28 61 See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).