Williams v. Adams

In the

United States Court of Appeals
For the Seventh Circuit

No. 10-3044

B RUCE A. W ILLIAMS,
Plaintiff-Appellant,
v.

JASON A DAMS, et al.,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 646—Wayne R. Andersen, Judge.

S UBMITTED A UGUST 31, 2011—D ECIDED S EPTEMBER 23, 2011

Before P OSNER, R OVNER, and W OOD , Circuit Judges.
P OSNER, Circuit Judge. The question presented by
this appeal is: when is it proper to dismiss a suit
because the plaintiff failed to pay a sanction if the only
reason for the failure is that he doesn’t have the money
to pay it?
The plaintiff had filed this lawsuit pro se under
42 U.S.C. § 1983 against four police officers who he
claimed had arrested him without probable cause and
2 No. 10-3044

in doing so had assaulted him (causing facial scars that
made it impossible for him to follow his vocation of
cosmetologist/educator), all in violation of his rights
under the Fourth Amendment. The judge allowed him
to proceed in forma pauperis. Eventually the judge
granted summary judgment in favor of the defendants
on a majority of the claims, but he ruled that the claims
of excessive force against two of the defendants could
proceed to trial.
The defendants’ counsel sent the plaintiff a draft
pretrial order, and the plaintiff retained, on a contingent-
fee basis, a lawyer named Garry Alonzo Payton of Elgin,
Illinois, to respond to it. Six months after the court’s
deadline for the filing of the final pretrial order, almost
six months after Payton had entered his appearance
in the district court, and after repeated, unsuccessful
attempts by the defendants to elicit a response from
Payton to the draft order, the defendants moved for
sanctions under Fed. R. Civ. P. 16(f) (failure to cooperate
in good faith in preparations for a pretrial conference).
They asked the court either to dismiss the suit or to
order reimbursement of the legal expenses they had
incurred in their vain effort to obtain a response to their
draft. The motion got the attention of the plaintiff and
Payton. A week later the parties jointly submitted a
final pretrial order. The defendants withdrew their
request for dismissal, but continued to press for a mone-
tary sanction.
With the final pretrial order filed, one might have
expected the final pretrial conference (see Fed. R. Civ. P.
No. 10-3044 3

16(e)) to ensue, followed by the trial itself, which would
have been short. Yet even though defendants were no
longer seeking dismissal of the plaintiff’s suit as a
sanction, the judge did not set a trial date. Instead he
referred the motion for sanctions to a magistrate judge,
who after two hearings declared the plaintiff and
Payton (who by now had withdrawn from the case and
been replaced by another lawyer) jointly liable to the
defendants for $9,055.14 (the additional fees they’d in-
curred because of Payton’s lack of cooperation in the
preparation of the final pretrial order), with a right of
contribution between the plaintiff and Payton. The
order directed that payment be made in full within
30 days.
The plaintiff attempted to negotiate with the de-
fendants a plan under which he would pay down the
$9,055.14 debt at a rate of $25 a month; that was, he
claimed, the most he could afford because his monthly
income was only $1,050 and his monthly expenses
were $1,000. The defendants rejected the plan, and the
30 days passed without any payment by either the
plaintiff or Payton.
Five months later the defendants moved to dismiss the
suit under Fed. R. Civ. P. 41(b) (dismissal for failure to
obey a court order), on the ground that by failing to pay,
the plaintiff had violated the court’s order to pay.
The district judge agreed with the defendants and dis-
missed the suit. He said the failure to pay had been
“contumacious,” despite the plaintiff’s inability to pay
$9,055.14, or any significant part of it; in the words of the
4 No. 10-3044

lawyer who replaced Payton, the plaintiff is “almost a
pauper.”
The plaintiff’s offer to pay off the sanctions debt at a
rate of $25 a month, though it may well have been the
best offer he could make given his financial situation,
was, from the standpoint of compliance with the district
court’s order, risible; for at that rate it would have
taken him more than 30 years to complete payment. He
was given 30 days; he sought 11,000. But the court was
mistaken to term the plaintiff’s failure to pay “contuma-
cious.” No one doubts that he can’t afford to pay the
monetary sanction. Inability to pay a fine has been held
not to justify the alternative of imprisonment, Bearden v.
Georgia, 461 U.S. 660, 672-73 (1983); Tate v. Short, 401
U.S. 395, 397-98 (1971); United States v. Seacott, 15 F.3d
1380, 1389 (7th Cir. 1994), and a plaintiff’s inability to
pay a monetary sanction imposed in a civil lawsuit
should not automatically justify the alternative sanction
of dismissal. E.g., English v. Cowell, 969 F.2d 465, 473 (7th
Cir. 1992); Selletti v. Carey, 173 F.3d 104, 111 (2d Cir. 1999);
Moon v. Newsome, 863 F.2d 835, 837-38 (11th Cir. 1989).
Court-ordered punishments (as distinct from punish-
ments specified in legislation) are required to be propor-
tioned to the wrong. Walton v. Bayer Corp., 643 F.3d 994,
999 (7th Cir. 2011); Rice v. City of Chicago, 333 F.3d 780, 784
(7th Cir. 2003); Smith v. Gold Dust Casino, 526 F.3d 402,
405 (8th Cir. 2008); Malot v. Dorado Beach Cottages
Associates, 478 F.3d 40, 45 (1st Cir. 2007). To ignore a
party’s inability to pay a sanction could result in a dis-
proportionate punishment—as this case illustrates. The
No. 10-3044 5

plaintiff’s suit had enough merit to force two of the
defendants to be placed on trial for a serious alleged
wrong. Had the trial not been aborted by dismissal of the
suit as a sanction for nonpayment of the $9,055.14
sanction, and had the plaintiff won at trial (and on
appeal, if one were taken), he might well have obtained
a judgment for significantly more than the amount he
owed. He thus would have been able to compensate
the defendants in full, including whatever interest
might be necessary to compensate them for the loss of
the time value of the money they had expended as a
result of Payton’s misconduct. Once a case is set for
trial, moreover, it has a positive settlement value, which
in this case we know exceeds $9,055.14 because the de-
fendants offered the plaintiff $10,000 in settlement—
minus the $9,055.14 that they are owed.
In these circumstances dismissal was too severe a
sanction. Not that inability to pay is an automatic
defense to an alternative sanction of dismissal. Or that a
litigant can elude a sanction by pointing, in this case
justifiably, to the fact that the misconduct was his law-
yer’s. Link v. Wabash R.R., 370 U.S. 626, 633-34 (1962);
Easley v. Kirmsee, 382 F.3d 693, 698 (7th Cir. 2004); Roland
v. Salem Contract Carriers, Inc., 811 F.2d 1175, 1180 (7th
Cir. 1987); Sealed Appellant v. Sealed Appellee, 452 F.3d
415, 419 (5th Cir. 2006); Gripe v. City of Enid, 312 F.3d
1184, 1189 (10th Cir. 2002). A plaintiff who gratuitously
imposes huge unrecoverable costs on his adversary
cannot successfully oppose dismissal on the ground that
he can’t pay those costs, for then abuse of the litigation
process to harass a defendant would be underdeterred.
6 No. 10-3044

“[M]isconduct itself might warrant dismissal if a plain-
tiff’s financial circumstances eliminate the effectiveness
of sanctions as a remedy or as a deterrent.” Selletti v.
Carey, supra, 173 F.3d at 112 n. 12; see also Moon v.
Newsome, supra, 863 F.2d at 838-39; Herring v. City of
Whitehall, 804 F.2d 464, 468 (8th Cir. 1986) (per curiam).
As the Supreme Court stated in a related context in
Williams v. Illinois, 399 U.S. 235, 244 (1970), “the State is
not powerless to enforce judgments against those finan-
cially unable to pay a fine; indeed, a different result
would amount to inverse discrimination since it would
enable an indigent to avoid both the fine and imprison-
ment for nonpayment whereas other defendants must
always suffer one or the other conviction.”
But as it turned out, the plaintiff’s miserable financial
situation did not cancel the monetary sanction that the
court had imposed. We mentioned a possible favorable
judgment and the suit’s settlement value as potential
sources of payment, but there has turned out to be a
surer source. The plaintiff resourcefully complained to
Illinois’s Attorney Registration and Disciplinary Com-
mission that Payton had been entirely responsible for
the delay in responding to the draft pretrial order sub-
mitted by the defendants. The ARDC agreed—noting
for example Payton’s admission that he had no acquain-
tance with federal procedure and indeed had never filed
a pretrial order before this case. The Supreme Court
of Illinois, which supervises the ARDC and enforces
discipline against members of the Illinois bar, ordered
Payton to pay the entire $9,055.14 to the defendants and
suspended him from practicing law for 45 days. Payton got
No. 10-3044 7

off lightly. Ignoring the need to prepare a pretrial order
was inexcusable. Ignoring the order to pay sanctions was
worse; it was contempt of court. His “excuse” of unfamil-
iarity with federal procedure is feeble. He voluntarily
joined the federal bar and voluntarily took on the represen-
tation of the plaintiff in a federal case, which committed
him to learn essential aspects of federal procedure that he
may have been unfamiliar with—and anyway the defen-
dants’ motions and letters told him what he had to do.
Payton paid the defendants as directed by the
Supreme Court, in full, and indeed did so before the
defendants filed their brief in this appeal, though the
brief does not mention the fact, as it should have done.
(The plaintiff’s reply brief does note it.) With the defen-
dants fully compensated, the dismissal of the plaintiff’s
potentially meritorious suit when his own conduct
has been blameless has become an unreasonable sanc-
tion—the plaintiff actually saved the defendants
additional expense by complaining to the ARDC, for
otherwise they would have had to do so, or sue Payton, to
obtain payment of the fees awarded them by the district
court.
The payment by Payton does not render the appeal
moot, because the appeal is from the dismissal of the
suit. For the reasons we’ve explained, the dismissal
cannot stand.
This case, filed more than six and a half years ago,
was derailed by the sanctions proceeding. With that
proceeding now terminated, we trust that the district
court will move the case to completion without further
delay.
8 No. 10-3044

The judgment of dismissal is
R EVERSED.

9-23-11