Metropolitan News-Enterprise


Wednesday, August 8, 2018


Page 1


Ninth Circuit:

Dismissal Sanction Imposed on Inmate Who Threatened to Kill Guards


By a MetNews Staff Writer


A California state prison inmate who sent a post-trial letter to the deputy attorney general assigned to his civil rights case threatening to kill state prison employees if the case were not settled resulted yesterday in dismissal of his appeal by a panel of the Ninth U.S. Circuit Court of Appeals.

The inmate, Timothy Howard, lost his civil rights case against two California Department of Corrections and Rehabilitation (“CDCR”) guards at the California Substance Abuse Treatment Facility in Corcoran when a defense motion for summary judgment was granted. In his operative complaint, Howard alleged that guards M. Harris and J. Martins had filed false paperwork indicating Howard’s association with the Black Guerrilla Family prison gang.

A week after summary judgment was entered, Howard sent a letter to California Deputy Attorney General Heather M. Heckler, in which he said:

“[I]f this case is not reversed as required, or settled by CDCR as it should, I do intend on killing one or more of CDCR employees once I’ve made my final peace and allowed the courts and representatives to handle their obligations....

“Violence is not the only solution, yet it’s the only thing these people seem to understand and it’s a disgrace to see good men and women who work in prison caught in unnecessary conflict....

“[C]learly I desire not to harm, injure or kill anyone, but will not avoid it either if it’s required....”

Subsequent Apology

Based on this letter, the defendants moved for dismissal of Howard’s appeal. Howard opposed that motion, filing an apology for sending the letter.

The panel remanded the case, allowing District Magistrate Judge Jennifer L. Thurston of the Eastern District of California to conduct a hearing to determine whether Howard was sincere in his apology.

In her July 11 findings, Thurston wrote:

“The Court has little doubt that Mr. Howard is sorry that he wrote the April 14, 2015 letter but also has little doubt that he is not sorry he made the threats. The fact that he refused to acknowledge that he made threats makes any other conclusion impossible.”

Five Factors

The Ninth Circuit panel acknowledged that dismissal of an appeal as a sanction, under inherent powers, is only appropriate in extreme circumstances. Quoting the circuit’s 1999 decision in Yourish v. California Amplifier, it said the relevant factors  are:

“(1) the public’s interest in expeditious resolution of  litigation: (2) the court’s need to manage its docket: (3) the risk of prejudice to the  defendants: (4) the public policy favoring disposition of cases on their merits: and  (5) the availability of less drastic alternatives.”

Yesterday’s order says:

“We conclude that dismissal is appropriate under the extreme circumstances presented here. Of the five relevant factors, only the fourth factor—the public policy favoring disposition of cases on their merits—weighs against dismissal….The other factors favor dismissal, some strongly so.”

The order elaborated:

“As to the first two factors, Howard’s threats have delayed resolution of this appeal (factor one) and interfered with the court’s need to manage its docket 5 (factor two).…In addition, Howard’s threats present a risk of prejudice to the defendants (factor three) because they are intended to coerce the CDCR to settle with him or to take steps to ensure he prevails on appeal….Howard’s threats cannot easily be dismissed as mere talk—he has a documented history of threatening violence against correctional officers, and in 2009, he stabbed a correctional officer with intent to kill.”

The panel saw the availability of less drastic sanctions lacking in light of Thurston’s findings.

“If in fact Howard were sorry, then a less drastic sanction may have been available,” the order states.

The case is Howard v. Harris, No. 15-15820.


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