UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CHARLIE L. RICHARDSON,
Plaintiff-Appellant,

v.
                                                                    No. 97-2313
CABARRUS COUNTY BOARD OF
EDUCATION,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Carl Horn, III, Chief Magistrate Judge.
(CA-94-416-3-H)

Argued: May 6, 1998

Decided: June 9, 1998

Before MURNAGHAN and HAMILTON, Circuit Judges, and
MICHAEL, Senior United States District Judge for the
Western District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Michael Anthony Sheely, Charlotte, North Carolina, for
Appellant. Richard Lee Rainey, WOMBLE, CARLYLE, SAN-
DRIDGE & RICE, P.L.L.C., Charlotte, North Carolina, for Appellee.
ON BRIEF: Jim D. Cooley, Patricia E. Dowds, WOMBLE, CAR-
LYLE, SANDRIDGE & RICE, P.L.L.C., Charlotte, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

In this case, we consider an appeal from an Order granting the
defendant's motion to dismiss this action alleging race discrimination
in employment. The Order also barred the plaintiff from filing a simi-
lar Title VII action against his employer arising from a then-pending
EEOC right to sue notice, released the defendant from a putative set-
tlement agreement, and assessed attorneys' fees and costs against the
plaintiff from the date the court below found that he sent the first of
three threatening or intimidating letters to a trial witness. The same
Order denied plaintiff's motion to enforce the purported settlement
agreement. For the following reasons, we will affirm the decision of
the district court.

I.

Charlie Richardson ("Richardson") brought this action alleging
racial discrimination and retaliation in an unfavorable job evaluation
in June 1993, and the Board's failure to promote him to a number of
positions from January 1993 to October 1994. Richardson asserted
that the discrimination and retaliation violated 42 U.S.C. §§ 1981
(Civil Rights Act of 1866), 1983 (Civil Rights Act of 1871) and
2000e et seq., (Title VII of the Civil Rights Act of 1964).

One count of Richardson's complaint survived summary judgment;
that count alleged racially discriminatory failure to promote him to
assistant principal at Concord Middle School in September 1994. The
case was tried to a jury on November 12-18, 1996. During trial, the
court granted, in part, defendant's motion for judgment as a matter of
law (i.e., a directed verdict) and dismissed Richardson's §§ 1981 and
1983 claims. The jury hung on the remaining Title VII claim, and the
presiding district judge declared a mistrial.

                    2
The court scheduled the retrial to begin on March 11, 1997. Prior
to trial, the parties' lawyers apparently reached an agreement settling
the lawsuit and also a then-pending EEOC right to sue notice issued
to Richardson after the mistrial. The right to sue notice arose from
discrimination charges Richardson had lodged against the Board
related to a failure to promote on another occasion. On December 3,
1996, several weeks after the mistrial, Ms. Jessie Blackwelder
("Blackwelder"), Assistant Superintendent of Cabarrus County
Schools, received an anonymous letter in the mail. Ms. Blackwelder
had been a central defense witness in the first trial and would have
been called again in the retrial. Joint Appendix ("JA") 103. The letter,
the district court found, was "moderately threatening in general tone."
Id. The court further stated:

          It referred to Ms. Blackwelder's "lies," noted that it was
          time "to get [her] back," and referred to "incriminating evi-
          dences" which would be revealed "to Mr. Richardson's
          attorney ... [and] to Judge Horn [the presiding judge at trial],
          too" unless Mr. Richardson received an administrative posi-
          tion "immediately." Besides disclosure of the"incriminating
          evidences," the letter "promise[d]" Ms. Blackwelder jail,
          fines, and "sudden retirement" if she did not cooperate with
          the anonymous author's demands.

JA 103-04.

On about April 8, 1997, Ms. Blackwelder received a second anony-
mous letter. As the district court found:

          This letter praised Mr. Richardson "FOR NOT SIGNING
          ANYTHING," advised "THAT MR. RICHARDSON IS
          SEEKING ANOTHER'S [sic] COUNSEL [ sic] ASSIS-
          TANCE," and referred to the "THE CHEAP ASS DEAL
          YOU'LL [sic] THOUGHT [Richardson] WOULD TAKE.
          ..."

JA 105. The court found that this letter represented the "strongest
condemnation of the purported settlement." JA 105. Apart from the
settlement, the letter:

                    3
          [H]ad an angrier, and consequently a more threatening tone.
          It was also more obscene, calling Ms. Blackwelder a string
          of sexually-oriented epithets, and stating that she would be
          "SICK, CRAZY, AND RETIRED" if she did not"READ
          MY FIRST LETTER, IF YOU KNOW WHAT I MEAN!"

Id. On about April 10, 1997, a third anonymous letter, addressed to
Ms. Blackwelder's husband, was received by Ms. Blackwelder. The
letter said of Ms. Blackwelder, "SHE WILL LEARN NOT TO `[ex-
pletive deleted]' WITH ME...." JA 106.

The School Board requested an evidentiary hearing to determine if
Mr. Richardson was engaging in witness tampering or intimidation.
The court held two such hearings on May 12 and July 2, 1997. Fol-
lowing the hearings, the Board filed a motion to dismiss Richardson's
action with prejudice, to bar plaintiff from filing any action related to
his then-pending EEOC right to sue notice in another matter, to
release the Board from the settlement agreement, and to assess attor-
neys' fees and costs against the plaintiff. On August 1, 1997, Richard-
son filed a motion to enforce the settlement agreement. On August 29,
1997, the district court granted the Board's motion and denied Rich-
ardson's motion. This appeal by Richardson followed.

II.

When a party to a lawsuit deceives the court or abuses the litigation
process in a manner utterly inconsistent with the orderly administra-
tion of justice or so as to undermine the integrity of the judicial pro-
cess, the court has the inherent power to dismiss the suit. United
States v. Shaffer Equipment Co., 11 F.3d 450, 462 (4th Cir. 1993). On
appeal, the district court's use of that inherent power is reviewed for
abuse of discretion. Id. In reviewing the district court's factual find-
ings on which it based its decision to dismiss the action, the "clearly
erroneous" standard applies. Id. at 456.

III.

A. Findings of Fact

The record is replete with evidence that supports the district court's
finding that Mr. Richardson wrote the letters to Ms. Blackwelder in

                      4
an attempt to persuade her not to testify or to alter or modify her testi-
mony in the retrial of this case.

1. Richardson Wrote the Three Letters to Ms. Blackwelder

The district court found that "the plaintiff typed and mailed the
three anonymous letters." JA 109. A forensic document examiner tes-
tified at the evidentiary hearing that, based on certain distinguishing
characteristics he observed, the first letter to Ms. Blackwelder was
typed on the same typewriter as three sample letters from Richard-
son's personnel file known to have been typed by him. JA 322-23.
The expert noted similarities in the letters' typeface (pica) and charac-
ter alignment. JA 323-26.

Furthermore, the texts of the three letters suggest that they share a
common author. The second letter begins with the statement, "HI!
REMEMBER ME! I'M BACK!" JA 363. The second letter continues,
"JESSIE ELIZABETH DID YOU THINK THAT I WOULDN'T BE
IN TOUCH AGAIN!" Id. As well, all three letters employ similar
phrasing and punctuation including the extensive use of exclamation
marks, vulgar language, references to Ms. Blackwelder as "Jessie
Elizabeth," and the use of the abbreviation "assist." for the word "as-
sistant."

The three letters' substance also points to Richardson as the author.
The second letter refers at length to the settlement negotiations in the
case. The letter states:

          I AM SO PROUD OF MR. RICHARDSON FOR NOT
          SIGNING ANYTHING.... THE CHEAP ASS DEAL
          YOU'LL [sic] THOUGHT HE WOULD TAKE WANT
          [sic] WORK. HA! HA! HA! ... MAKING DEALS UNDER
          THE TABLE WITH LAWYERS ALL WAYS [sic] COME
          ON TOP OF THE TABLE....

JA at 363. The fact that, as of the date of the second letter, no final
settlement agreement had been signed was confidential information
known only to the lawyers, Richardson, Richardson's family, and a
"former professor" of the plaintiff's. JA 241, 247-48, 294, 312. The

                     5
second letter also recites that Richardson was seeking assistance from
a second attorney (in addition to the one representing him in the set-
tlement). Only the plaintiff and, perhaps, his immediate family would
have known of this development.

2. Richardson's "Denials"

At the May 12 evidentiary hearing, Richardson refused to testify,
invoking his Fifth Amendment privilege against self-incrimination.
JA 189. To the extent that the district court relied on Richardson's
refusal to testify as evidence of his involvement in the letter writing,
such reliance is proper. Baxter v. Palmigiano , 425 U.S. 308, 318
(1976) ("[T]he Fifth Amendment does not forbid adverse inferences
against parties to civil actions when they refuse to testify in response
to probative evidence offered against them: the Amendment does not
preclude the inference where the privilege is claimed by a party to a
civil cause.").

At the second evidentiary hearing, on July 2, Richardson testified
that someone else must have written the letters because he kept his
typewriter at school and previously had had problems with unknown
persons "plundering" his work area. JA 219. The principal of the
school, however, testified that Richardson never complained to any-
one about any such "plundering" or any type of unauthorized entry
into his classroom area. JA 338. Only Richardson's testimony in any
way suggested that a typewriter pillager may have written the letters.
Of Richardson's testimony, the district court explicitly found that he
"perjured himself repeatedly and extensively in his testimony before
this Court on July 2, 1997." JA 109. The Board's burden of proof that
Richardson wrote the letters was "by the preponderance of the evi-
dence." Based on the weight of the evidence adduced, we hold that
the district court did not commit clear error in finding that the defen-
dant met its burden nor did the court err in finding that Richardson
wrote all three letters.

B. Intimidation of the Witness

Richardson claims that because Ms. Blackwelder testified that she
felt "threatened" from the letters, but not"intimidated," the district

                     6
court committed clear error when it found that Richardson intimidated
or attempted to intimate Ms. Blackwelder. Appellant's Brief at 16.

Richardson's semantic distinctions ignore the substance of Ms.
Blackwelder's testimony. She stated that the letters made her feel
"shocked" and "stunned;" she became physically ill and she feared for
the safety of herself and her family. JA 291-92. We hold, therefore,
that the district court did not clearly err when it found, based on the
"threatening" tone of the letters and the implicit threats therein,* that
the writings were issued in an attempt to intimidate.

C. Dismissal

Given that the court fairly concluded that Richardson either had
intimidated or had attempted to intimidate Ms. Blackwelder, it pos-
sessed the inherent power to take steps to protect the integrity of the
judicial process and of the court itself. As we have instructed previ-
ously:

          [W]hen a party deceives a court or abuses the process at a
          level that is utterly inconsistent with the orderly administra-
          tion of justice or undermines the integrity of the process, the
          court has the inherent power to dismiss the action.

Shaffer Equipment, supra, 11 F.3d at 462 (4th Cir. 1993) (recognizing
authority of court to dismiss in response to attorney's violation of
duty of candor to the court); see also Frumkin v. Mayo Clinic, 965
F.2d 620, 626 (8th Cir. 1992) (recognizing that"considerable defer-
ence" should be given to a district court's decision whether to dismiss
in response to plaintiff's intimidation of witnesses). In Shaffer
Equipment, we wrote that:

          Due to the very nature of the court as an institution, it must
          and does have an inherent power to impose order, respect,
          decorum, silence, and compliance with lawful mandates.
_________________________________________________________________
*"IMMEDIATE RESULTS IN THIS CASE MUST BE GIVE IT'S
[the Board's] FULLEST ATTENTION OR AGAIN, BYE, BYE,
QUEER QUEEN BEE JESSIE ELIZABETH.... IT'S UP TO YOU OR
ELSE...." JA 363.

                     7
          This power is organic, without need of a statute or rule for
          its definition, and it is necessary to the exercise of all other
          powers....Under the inherent power, a court may issue
          orders, punish for contempt, vacate judgments obtained by
          fraud, conduct investigations as necessary to exercise the
          power, bar persons from the courtroom, assess attorneys'
          fees, and dismiss actions. Since orders dismissing actions
          are the most severe, such orders must be entered with the
          greatest caution.

Shaffer Equipment, 11 F.3d at 461-62. Before exercising the inherent
power to dismiss, a district court must consider the following factors:
(1) the degree of the wrongdoer's culpability, (2) the extent of the cli-
ent's blameworthiness if the wrongful conduct is committed by the
attorney, (3) the prejudice to the judicial process and the administra-
tion of justice, (4) the prejudice to the victim, (5) the availability of
other sanctions, and (6) the public interest. Id. at 462-63.

Here, even though the district court did not explicitly apply each
Shaffer Equipment factor to the fact pattern presented, it certainly
considered them. The court cited Shaffer Equipment and expressly
mentioned its factors in support of its holding that"no judicial
response short of dismissal would be adequate to protect the integrity
of the court or `the public interest.'" JA 111. Accordingly, we hold
that the court did not abuse its discretion in dismissing, with preju-
dice, Richardson's action.

D. Barring Suit on the Right-to-Sue Notice

Courts may resort to restrictive measures that exclude parties who
have abused their litigation opportunities from normally available
judicial proceedings. In re Martin-Trigona, 9 F.3d 226, 228 (2d Cir.
1993). Pursuant to a court's inherent power to regulate the judicial
process, it may enjoin litigants who have abused the system from fil-
ing further lawsuits. Id. (citing, inter alia, Villar v. Crowley Maritime
Corp., 990 F.2d 1489 (5th Cir. 1993) (upholding district court's
injunctions against litigants filing any future litigation based on the
same underlying facts)). To be sure, most instances in which a party
is enjoined from future litigation arise from the party filing multiple
frivolous claims. Nonetheless, the rationale behind the court's inher-

                     8
ent power is apposite here. The district court found that Richardson
engaged in witness intimidation by sending sordid and intimidating
letters to a key witness for the Board. Permitting Richardson to go
forward with another, similar action against the same defendant who
likely would marshal the same witnesses in defense of the new law-
suit would tempt fate and risk repetition of Richardson's abusive
behavior. We hold, therefore, that the court did not abuse its discre-
tion in enjoining Richardson from bringing an action based on the
EEOC right to sue notice.

E. Attorneys' Fees and Costs

"[A] court may assess attorney's fees when a party has acted in bad
faith, vexatiously, wantonly or for oppressive reasons." Chambers v.
NASCO, Inc., 501 U.S. 32, 45-46 (1991) (internal quotations and cita-
tions omitted). "[I]f a court finds that fraud has been practiced upon
it, or that the very temple of justice has been defiled, it may assess
attorney's fees against the responsible party[.]" Id. at 46 (internal quo-
tations and citations omitted).

Here, Richardson's misconduct forced the Board to incur addi-
tional fees and costs ($41,846.01) from the date of the first letter to
Ms. Blackwelder. JA 129. We hold that ordering the offending party
to pay those fees and costs was not an abuse of discretion by the court
below.

F. The Settlement Agreement

Although counsel for both Richardson and the Board represented
to the district court that a tentative settlement had been reached
between the attorneys and only needed to be made final, sufficient
evidence in the record suggested that Richardson personally did not
believe there was a settlement. Thus, the court reasonably could have
concluded (as it did) that no "meeting of the minds" as to the settle-
ment had occurred at the time Richardson sent the three letters.

The district court found that in March 1997, Richardson made
"critical statements about the settlement" to a deputy clerk of court at
the Clerk's Office. JA 104-05, 112-13. At the evidentiary hearing, the

                     9
clerk testified that on the day scheduled for the retrial, Richardson
came to the office and asked if the trial would take place. "He contin-
ued to say that it [the case] was not settled. That he had tried to con-
tact Mr. Gresham [Richardson's attorney] over the weekend and had
no response and had not talked with him at all; and as far has he
[Richardson] was concerned, the trial was on." JA 356. As the plain-
tiff left the office, he stated that "he would get to the bottom of it."
Id. Moreover, the second letter to Ms. Blackwelder, as excerpted
above, indicates that Richardson vehemently opposed the terms of the
proposed settlement agreement. See JA at 363.

The district court based its decision to refuse to enforce the settle-
ment on the fact that Richardson had engaged in witness intimidation
and on the fact that no meeting of the parties' minds had occurred.
JA 112-13. Of the plaintiff's culpable conduct in sending the three let-
ters, the court wrote:

          Counsel for plaintiff concedes that "[t]he March, 1997 let-
          ters, especially the one addressed to Mrs. Blackwelder[,] are
          base documents and may provide Mrs. Blackwelder with a
          civil action for damages as well as a criminal complaint."
          Counsel also concedes that writing such letters might consti-
          tute "a basis to discharge Mr. Richardson [from employ-
          ment, pursuant to] N.C.G.S. §115C-325...." In spite of these
          concessions, however, counsel argues that "the letters
          should not serve as the basis for setting aside the settle-
          ment."

          The undersigned, although an admirer of counsel's intelli-
          gence, fails to see how civil damages, criminal charges and
          penalties, and termination of employment might all be war-
          ranted, yet the offending party remain[s] entitled to enforce-
          ment of a settlement agreement.

          To the contrary, neither law nor equity weigh in favor of
          enforcement of this settlement agreement--if, in fact, there
          ever was such an agreement. Accordingly, plaintiff's
          Motion To Enforce Settlement Agreement (a.k.a. the"cheap
          ass deal") must and shall be denied.

                    10
JA 113-14.

The court's reasoning is an eloquent exposition of the rationale
behind its inherent power to set aside a settlement agreement; a court
must be free to protect its integrity, send a message to the public, and
prevent a misbehaving litigant from profiting from his own wrongdo-
ing, consistent with Shaffer Equipment, supra. Because the court
acted well within that inherent power, we hold that it did not abuse
its discretion in declining to enforce the settlement agreement.

IV.

For the foregoing reasons, the decision of the court below shall be,
and it hereby is,

AFFIRMED.

                    11
