United States District Court, D. Arizona
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
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