Carson v. Ryan

          ORDER

          Bridget S. Bade, United States Magistrate Judge.

         Plaintiff has filed a “Request for Sanctions on Prison Officials Counsel pursuant to Federal Common Law and First Amendment.” (Doc. 96.) The motion is fully briefed. (Docs. 154, 158.) For the reasons below, the Court denies the motion.

         I. Background

         On May 26, 2017, Plaintiff filed his original complaint. (Doc. 1.) The Court screened the Complaint and ordered Defendants Ryan, Linderman, and Vicklund to answer Plaintiff's claims that he was denied a religious kosher diet in violation of the First Amendment and Religious Land Use and Institutionalized Persons Act (“RLUIPA”), and that they have treated him differently than other similarly situated prisoners in violation of his equal protection rights. (Doc. 10 at 10.)

         On March 19, 2018, Plaintiff moved to amend or supplement his Complaint to add five defendants: former Arizona Department of Corrections (“ADC”) Librarian Hernandez, Legal Access Monitor Erwin, Contract Paralegal Ulibarri, Correctional Officer (“CO”) III Richardson, and John Doe # 1 (Associate Deputy Warden Pitz), and to add claims that his First Amendment right to “Free Speech” with his attorney was violated (Counts 14-18), his equal protection rights were violated (Count 19), and that Defendant Ryan, along with the proposed new Defendants, retaliated against him (Count 20). (Doc. 43.) Defendants responded to Plaintiff's motion on May 11, 2018. (Doc. 95.) In support of their response, Defendants filed a declaration from former ADC Librarian Hernandez, which included a November 15, 2017 letter from Elizabeth Callahan, a Certified Law Student at the Stanford Religious Liberty Clinic. (Doc. 95-1 at 2-75.) In his pending motion for sanctions, Plaintiff claims that Defendants and their attorney violated his “attorney-client Free Speech Communication” when they reproduced the November 15, 2017 letter and filed it with the Court. (Doc. 96.) Plaintiff asks the Court to strike or seal the letter, and to sanction the Defendants and their attorney for acting in bad faith. Defendants oppose the motion. (Doc. 154.)

         II. Motion for Sanctions

         A. Rule 11

         Plaintiff does not specifically rely on Rule 11 of the Federal Rules of Civil Procedure to support his motion for sanctions. (Doc. 96.) However, even if the Court were to construe Plaintiff's motion as seeking Rule 11 sanctions, it would decline to award such sanctions for the reasons below.

         Rule 11 prohibits “‘frivolous filings' and the use of judicial procedures as a tool for ‘harassment.'” Hudson v. Moore Business Forms, Inc., 836 F.2d 1156, 1159 (9th Cir. 1987) (citation omitted). Rule 11(c) provides that federal courts may impose sanctions on any attorney or party who, “after notice and an opportunity to respond, ” has violated any of the provisions of Rule 11(b). Fed.R.Civ.P. 11(c)(1). Rule 11 provides a specific procedure for bringing a motion for sanctions. In particular, the movant must serve the proposed motion for sanctions on the party against whom sanctions are sought, and then may file the motion with the court, 21 days after service of the proposed motion, if the allegedly noncompliant filing, “claim, defense, contention, or denial” is not “withdrawn or appropriately corrected” within that period. Fed.R.Civ.P. 11(c)(2). “These provisions are intended to provide a type of ‘safe harbor' against motions under Rule 11 in that a party will not be subject to sanctions on the basis of another's party's motion unless, after receiving the motion, it refused to withdraw that position or to acknowledge candidly that it does not currently have evidence to support a specified allegation.” Barber v. Miller, 146 F.3d 707, 710 (9th Cir.1998) (internal quotation marks omitted)).

         Defendants assert that the Court should deny Plaintiff's motion for sanctions because he did not comply with the safe harbor provision of Rule 11. Plaintiff does not dispute that he did not comply with the procedural requirements for bringing a Rule 11 motion.^[1] (Doc. 158 at 9.) Because Plaintiff did not comply with Rule 11, to the extent that Plaintiff relies on Rule 11, the motion for sanctions is denied.

         B. The Court's Inherent Authority

         A court has the inherent power to sanction a party or its attorney for “abusive litigation practices.” Roadway Express, Inc. v. Piper, 447 U.S. 752, 765 (1980). Plaintiff argues that the Court should sanction Defendants and their counsel for violating his “right to confidential free speech with his counsel” by filing a copy of his correspondence with his counsel in this Court.^[2] (Doc. 96 at 1 (citing Doc. 95-1 at 70-71).) The “‘right to hire and consult an attorney is protected by the First Amendment's guarantee of freedom of speech, association and petition.'” Mothershed v. Justices of the Supreme Court, 410 F.3d 602, 611 (9th Cir. 2005) (quoting Denius v. Dunlap, 209 F.3d 944, 953 (7th Cir. 2000)).

         In her declaration submitted in response to the motion for sanctions, Defendant Hernandez states that on November 21, 2017, Plaintiff submitted a Request/Authorization for Non-Qualified/Non-Legal Copying seeking copies of over 600 pages of documents, including 561 pages of “religious documents requested by attorney.” (Doc. 154, Ex A at ¶ 5.) Upon receiving Plaintiff's request, Hernandez asked Plaintiff why he needed over 600 pages copied. (Id. at ¶ 6.) Plaintiff responded that the copies were for his attorney and told Hernandez to read the November 15, 2017 letter from the Stanford Religious Liberty Clinic (“the Clinic”). (Id.) Hernandez states that she read the letter and told Plaintiff that it did not appear that the Clinic wanted copies of the documents that he was requesting. (Id. at ¶ 7.)^[3] Hernandez states that Plaintiff insisted that he needed the copies that he had requested, and told her to call the Clinic to confirm. (Doc. 154, Ex. A at ¶ 7.) Hernandez states that she called the Clinic and copied the letter for her “personal file” to document her interactions with Plaintiff and her call with the Clinic. (Id. at ¶ 8.)

         Defendants argue that the November 15, 2017 letter was not protected by attorney-client privilege and, alternatively, Plaintiff waived any privilege by providing the letter to Hernandez. (Doc. 154 at 4.) Plaintiff asserts that “ADC policy” required him to show “documentation to [the] librarian that his requests for copies are actually being made for counsel with the names and addresses of said counsel.” (Doc. 158 at 3.) Plaintiff asserts that his compliance with this policy did not automatically waive his attorney-client privilege in the letter. (Id.) Plaintiff also asserts that he is not claiming a violation of the attorney-client privilege, but instead is asserting a First Amendment violation. The Court, therefore, will not consider whether to impose sanctions based on Plaintiff's ...