20-1041-pr
Mattieu Burks v. Chad Stickney et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT
ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 28th day of December, two thousand and twenty.
PRESENT: DENNY CHIN,
JOSEPH F. BIANCO,
STEVEN J. MENASHI,
Circuit Judges.
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MATTIEU BURKS,
Plaintiff-Appellee,
v. 20-1041-pr
CORRECTION OFFICER CHAD STICKNEY, Clinton
Correctional Facility, CORRECTION OFFICER
NOLAN, Clinton Correctional Facility, CORRECTON
OFFICER SMITH, Clinton Correctional Facility,
CORRECTION OFFICER EDWARD L. PEPPER, Clinton
Correctional Facility, SERGEANT JOHN MARK CROSS,
Clinton Correctional Facility, SUPERINTENDENT
STEVEN RACETTE, SUPERINTENDENT MICHAEL
KIRKPATRICK, DAVID J. CHAMBERLAIN, JOSHUA
R. WOOD,
Defendants-Appellants. *
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FOR PLAINTIFF-APPELLEE: LEO GLICKMAN, Stoll, Glickman & Bellina,
LLP, New York, New York.
FOR DEFENDANTS-APPELLANTS: BEEZLY J. KIERNAN, Assistant Solicitor
General (Barbara D. Underwood, Solicitor
General, Jeffrey W. Lang, Deputy Solicitor
General, on the brief), for Letitia James,
Attorney General for the State of New York,
Albany, New York.
Appeal from the United States District Court for the Northern District of
New York (Scullin, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Defendants-appellants—corrections officers and superintendents at the
Clinton Correctional Facility ("Clinton") in Dannemora, New York ("defendants")—
appeal from an order of the United States District Court for the Northern District of
New York (Peebles, C.M.J.) entered January 29, 2018, imposing sanctions of $628.65 each
against two of them, Michael Kirkpatrick and Steven Racette. The district court (Scullin,
J.) eventually granted summary judgment in favor of defendants and entered judgment
accordingly on March 17, 2020. The only issue on appeal is narrow and concerns
* The Clerk of Court is respectfully directed to amend the official caption to conform to the
caption above.
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defendants' challenge to the sanctions award imposed against Kirkpatrick and Racette
for their alleged failure to cooperate in the scheduling of their depositions.
In the underlying 42 U.S.C. § 1983 action, plaintiff-appellee Mattieu Burks,
a former inmate at Clinton, sued defendants, alleging that they harassed and assaulted
him and deprived him of certain necessities while he was incarcerated. 1
During discovery, there were several breakdowns in communication
between the parties' counsel. Counsel's conduct "required intervention from the court
in connection with matters that should not have arisen or should have been resolved
between counsel." Joint App'x at 170. One such matter was the scheduling of
Kirkpatrick's and Racette's depositions. The court (Peebles, C.M.J.) entered a text order
on October 19, 2017, directing Kirkpatrick and Racette to appear for their rescheduled
depositions on October 24 and 25, respectively. Then, by order dated January 29, 2018,
the court imposed sanctions against Kirkpatrick and Racette for their "stark lack of
cooperation" in "[t]he efforts to schedule the[ir] depositions." Joint App'x at 185. The
court awarded Burks attorney's fees and costs in the sum of $628.65 each against
Kirkpatrick and Racette.
1 On the night of June 5, 2015, two inmates serving life sentences escaped from Clinton. Burks
alleged that in the weeks that followed, staff at Clinton targeted him in retaliation for his
purported association with one of the escapees and a civilian employee at Clinton who was
convicted of a felony for her role in facilitating the escape.
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On September 26, 2018, the district court (Scullin, J.) affirmed the
magistrate's award of sanctions in its entirety, concluding that it was "not left with the
definite and firm conviction that Magistrate Judge Peebles committed any mistakes,
overlooked any evidence, or that his conclusions were clearly erroneous or contrary to
law." Joint App'x at 249–50. The imposition of sanctions was stayed pending
resolution of the underlying case and pending any appeal. After the entry of judgment
in favor of defendants, this appeal followed. See Fed. R. Civ. P. 72(a); Cunningham v.
Hamilton Cnty., 527 U.S. 198, 210 (1999) (holding an appeal from a Rule 37 sanctions
order cannot be taken until a final judgment in the underlying litigation is entered).
DISCUSSION
On appeal, defendants argue that the district court abused its discretion in
ordering sanctions against Kirkpatrick and Racette because the court clearly erred in
finding that their depositions would not have taken place absent its intervention.
Specifically, they assert that the evidence establishes that Kirkpatrick and Racette had
agreed to their final deposition dates before the sanctions motion was filed and that
they had consistently cooperated to schedule their depositions.
"We review all aspects of a district court's decision to impose sanctions for
abuse of discretion." Virginia Props., LLC v. T-Mobile Ne. LLC, 865 F.3d 110, 113 (2d Cir.
2017) (brackets and internal quotation marks omitted). A district court abuses its
discretion if its sanctions order is based "on an erroneous view of the law," "a clearly
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erroneous assessment of the evidence," or the order "cannot be located within the range
of permissible decisions." Id. (internal quotation marks omitted). "It is well settled that
district courts enjoy wide discretion in sanctioning litigants appearing before them,"
Novak v. Wolpoff & Abramson LLP, 536 F.3d 175, 177 (2d Cir. 2008) (per curiam), because
district courts are "better situated than [a] court of appeals to marshal the pertinent facts
and apply the fact-dependent legal standard that informs [their] determination as to
whether sanctions are warranted," Virginia Props., 865 F.3d at 113 (internal quotation
marks omitted). Still, "[i]f we are to be satisfied that a district court has properly
exercised its discretion, we must be informed by the record of why the district court
acted as it did." In re Bolar Pharm. Co. Sec. Litig., 966 F.2d 731, 732 (2d Cir. 1992) (per
curiam).
As a preliminary matter, there appears to be some disagreement amongst
the parties as to whether the district court imposed sanctions against Kirkpatrick and
Racette under Federal Rule of Civil Procedure 37(d) or under its inherent power to
assess attorney's fees. 2 Although the district court did not specify the legal basis for its
2 The authority under which the court imposed sanctions is material to our review: if the court
entered sanctions under its inherent power, we apply a more searching review—requiring a
finding of "bad faith" of those sanctioned—than we would if sanctions were entered pursuant to
Rule 37(d). Compare Sakon v. Andreo, 119 F.3d 109, 114 (2d Cir. 1997) (sanctions entered
pursuant to a court's inherent power are authorized "only when there is a finding of conduct
constituting or akin to bad faith"), with Fed. R. Civ. P. 37(d)(3) (authorizing sanctions "unless the
failure was substantially justified or other circumstances make an award of expenses unjust"),
and Fed. R. Civ. P. 37(d) advisory committee's note to 1970 amendment ("[T]he permissible
sanctions are broadened to include such orders as are just" in an attempt to provide "greater
flexibility as to sanctions" (internal quotation marks omitted)).
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sanctions order, we are satisfied that the court entered sanctions pursuant to Rule 37(d)
because the conduct on which sanctions were based—Kirkpatrick's and Racette's "stark
lack of cooperation" in scheduling their depositions, Joint App'x at 185—involved
Kirkpatrick's and Racette's depositions and not some other vexatious or dilatory
conduct raised by Burks in his motion for sanctions (e.g., defendants' misidentification
of a correctional officer named in Burks's complaint).
Federal Rule of Civil Procedure 37(d)(1)(A)(i) provides that a court may
order sanctions for a party's failure to attend his own deposition. Sanctions may
include any of those listed in Rule 37(b)(2)(A)(i)–(vi), and, if awarded, must include the
absent party paying "the reasonable expenses, including attorney's fees, caused by [its]
failure [to attend its deposition], unless the failure was substantially justified or other
circumstances make an award of expenses unjust." Fed. R. Civ. P. 37(d)(3). Reasonable
fees may include attorney's fees and costs in connection with filing a motion for
sanctions. See, e.g., John Wiley & Sons, Inc. v. Book Dog Books, LLC, 298 F.R.D. 145, 151
(S.D.N.Y. 2014).
Here, the district court's order imposing sanctions on Kirkpatrick and
Racette is detailed and sufficiently explains why attorney's fees were awarded. The
district court's January 29, 2018 order carefully walks through the scheduling
difficulties that arose around setting Kirkpatrick's and Racette's depositions. As the
numerous emails between parties' counsel show, Kirkpatrick's and Racette's depositions
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were rescheduled several times; the majority of the rescheduling occurred at the behest
of Kirkpatrick and Racette. Both Kirkpatrick and Racette canceled scheduled
depositions on at least two occasions (Kirkpatrick cancelled three, two of which he
canceled the day before). Defendants argue that the district court clearly erred in
finding "that absent its intervention, the depositions of defendants Kirkpatrick and
Racette would not have occurred." Joint App'x at 183. 3 Although Kirkpatrick and
Racette apparently agreed to their respective deposition dates before the court issued its
text order directing them to appear on those same dates, they committed to those dates
only after Burks's counsel wrote to the court requesting a premotion conference and
drafted and transmitted to defense counsel a memorandum of law and declaration in
support of a motion for sanctions. Moreover, based on the failures of Kirkpatrick and
Racette to keep their commitments, the court did not abuse its discretion in concluding
that "[t]he efforts to schedule the depositions of defendants Racette and Kirkpatrick . . .
demonstrated a stark lack of cooperation on the part of the deponents, and required
plaintiff to expend effort that should have been unnecessary." Joint App'x at 185. The
district court also did not abuse its discretion in ordering Racette and Kirkpatrick to
3 Defendants also assert that the district court made "two key factual errors." Appellants Br. at
10. Although the court did make one factual error—incorrectly listing the date on which
defendants' counsel emailed Burks's counsel to request that Kirkpatrick's September 20, 2017
deposition be moved—the error was harmless and did not affect the imposition of sanctions.
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compensate Burks's counsel. See Novak, 536 F.3d at 177 (noting "[i]t is well settled that
district courts enjoy wide discretion in sanctioning litigants" pursuant to Rule 37).
***
We have considered defendants' remaining arguments and found them to
be without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
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