                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                             F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                  February 9, 2007

                                                        Charles R. Fulbruge III
                                                                Clerk
                           No. 05-50624


BRANDON C. SAMPLE,
                              Plaintiff - Appellee,

versus

R. D. MILES, Etc; ET AL,

                              Defendants,

SUSAN KILGORE; WINSTANLEY F. LUKE,

                              Appellants.

                             --------
                             05-50727
                             --------

BRANDON C. SAMPLE,

                                     Plaintiff-Appellant,

versus

R. D. MILES, in his individual capacity;
R. WILSON, in his individual capacity;
A. FIGUEROA, C. BICKLE, FNU CHILDERS;
BRANDON WARREN; J. FLORES; V. GRIEGER;
R. SMITH; T. LANCE; RONALD G. THOMPSON;
KATHLEEN HAWK SAWYER; HARLEY LAPPIN,

                                     Defendants-Appellees.


                       --------------------
          Appeals from the United States District Court
                for the Western District of Texas
                       USDC No. 1:03-CV-311
                       --------------------
                             No. 05-50727, et al.
                                      -2-

Before JOLLY, HIGGINBOTHAM, and DENNIS, Circuit Judges.

PER CURIAM:*

     In the district court below, federal prisoner Brandon Sample

claimed, inter alia, that Bureau of Prisons officials retaliated

against him for filing grievances during his stay at a Bastrop,

Texas   facility.      The    district       court   granted   partial   summary

judgment to defendant Lappin, denying Sample’s request for an

injunction     requiring     Lappin    to    promulgate    policies   forbidding

retaliation and train officers accordingly.               After a two-day bench

trial, the court found for defendants on the remaining claims,

denying Sample’s request for money damages. It then sanctioned two

Assistant    United   States    Attorneys,       Winstanley    Luke   and   Susan

Kilgore,    $500   jointly    and     severally,     payable   to   Sample,   for

discovery abuse.      Sample appeals the judgment against him and the

AUSAs appeal the sanctions.           We address each in turn.

                                         I

     Sample argues first that we should remand, under Federal Rule

of Civil Procedure 52(a), for the district court to state more

specifically its factual findings because the court, at the end of

trial, orally found for defendants with little explanation and

later, in its Findings of Fact and Conclusions of Law, ruled only

that “[t]here is no credible evidence that any defendant considered

plaintiff’s use of the administrative remedy program when changing




      *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
                            No. 05-50727, et al.
                                     -3-

plaintiff’s job assignments.”1         Although the district court must

state its factual findings sufficiently for us to review them, it

need not state findings in great detail.2          Here, the court did more

than describe the rudimentary facts out of context - it also

recounted the relevant storyline.            More importantly, the trial

essentially centered on the credibility of Sample’s witnesses

versus that of prison officials, hence the court could do little

but state which group was credible.             Sample complains that the

court    did   not   discuss    evidence    contradicting     its   findings,

including pre-trial statements by defendants that contradicted

their trial testimony, but the court’s questioning at trial, its

recognition that Sample’s case was “by no means frivolous,” and, in

its Findings of Fact and Conclusions of Law where it sanctioned

defendants’ attorneys, discussion of the conflicting evidence show

that it clearly considered the contradictory evidence and chose to

believe defendants’ trial testimony.          No more was required.3




     1
        The court concluded similarly that there was “no credible evidence”
that Sample’s use of the grievance procedure affected the investigation of an
altercation between Sample and another inmate or the resulting disciplinary
proceeding. It also concluded that his transfer to another facility caused no
harm and that Sample suffered no damages from any alleged acts by defendants.
We construe Sample’s Rule 52(a) claim to apply to the former finding because
he briefly mentions it, but he does not attack as too bare the damages
finding.
     2
         See Chandler v. City of Dallas, 958 F.2d 85, 88-89 (5th Cir. 1992).

     3
        Sample also complains that the court never mentioned his allegation
that defendants Lance and Smith confiscated his property and threw away some
grievances. But the court heard evidence about these exact claims,
particularly Lance’s and Smith’s testimony, and later ruled that Sample
“suffered no damages as a result of any conduct by Defendants” and that Sample
failed to establish “a causal link between his assertion of First Amendment
rights and any of the conduct of which he complains.” Again, the court simply
believed the defendants, and it did not have to detail every claim.
                              No. 05-50727, et al.
                                       -4-

      Sample also attacks the court’s findings as clearly erroneous.

We can reverse under that standard only if, after reviewing all the

evidence, we are “left with the definite and firm conviction that

a mistake has been committed.”4         Where, as here, “the findings are

primarily based on oral testimony and the district judge has viewed

the demeanor and judged the credibility of the witnesses,” the

complaining party’s burden is particularly heavy.5                The district

court, being entitled to believe defendants’ testimony, was not

clearly erroneous in concluding that no retaliation occurred.6

Sample quibbles with two possible minor factual inaccuracies in the

court’s findings - dates and the exact number of different types of

grievances filed by Sample - but they are, if erroneous, harmless.7

      Sample next asserts that the court should’ve granted his post-

trial motion, under Rule 201(d), for judicial notice of several

facts, particularly the existence of the contradictory evidence.

Again, the court’s Rule 52(a) order makes clear that the court

considered all the evidence, including the contradictory evidence.

In any event, Sample cites no authority - and we cannot find any -

for the proposition that a court should, after a trial, take notice


      4
          United States v. Gypsum Co., 33 U.S. 364, 395 (1948).
      5
        See Justiss Oil Co. V. Kerr-McGee Refining Corp., 75 F.3d 1057, 1066
(5th Cir. 1996).

      6
        Sample complains, inter alia, that the court called what he calls an
assault on him a “fight,” and that, contrary to the court’s findings, his
transfer to another facility harmed him. Again, the court had discretion to
believe defendants’ testimony to the contrary. He also complains about the
court’s alleged mischaracterization of the precise nature of his transfer, but
Sample mischaracterizes the court’s findings, which reflect clear
understanding that he was transferred for safety reasons.
      7
          See FED. R. CIV. P. 61.
                             No. 05-50727, et al.
                                      -5-

of facts in the record and discussed at trial.             The court did not

abuse its discretion.8

     Sample asserts that the district court erred by concluding

that, as a matter of law, he had the burden to prove that but for

the alleged retaliatory motive, the discriminatory acts would not

have occurred.       As he properly concedes, this issue is foreclosed

by precedent,9 and he raises it only to preserve it.                Sample also

asserts that the district court misstated its jurisdiction as

arising under 28 U.S.C. § 1346(b) when it arose under 28 U.S.C. §

1331.       He is correct, but a miscitation to a correct legal

principle is no basis for reversal.

     Sample served Rule 36 requests for admissions on defendants

Miles and Wilson after filing the complaint but before serving

process on those defendants; Miles and Wilson never answered the

requests.      The district court excluded those ostensible admissions

at trial, concluding that Miles and Wilson were not yet “parties”

under Rule 36 when the requests were served.              Samples urges this

was error.      To the contrary, under Rule 36 “parties” do not exist

until they are served.         Indeed, it would be unfathomable to allow

discovery on people not yet served, people who have no notice of

any suit or knowledge of any controversy.10           Sample cites Sixth and

Seventh Circuit cases allegedly to the contrary, but those cases



     8
          See Taylor v. Charter Med. Corp., 162 F.3d 827, 829 (5th Cir. 1998).

     9
          See Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995).
     10
        See Henderson v. United States, 517 U.S. 654, 671-72 (1996)
(describing nature of service of process).
                          No. 05-50727, et al.
                                   -6-

are easily distinguishable and, in any event, not controlling.11

Although year 2000 amendments to Rule 26 exempt entities in certain

cases, like pro se prisoner cases, from the required initial

disclosures, the initial discovery conference requirement, and the

moratorium    on   discovery    until   after    that   conference,    those

amendments allow discovery on entities immediately after they are

served, not before.      Hence the district court ruled correctly.

     Sample argues next that the district court erred in holding

his claims against defendant Lappin for injunctive relief barred by

sovereign immunity, citing the APA’s waiver of sovereign immunity

for claims for injunctive relief, 5 U.S.C. § 702.              Sample never



     11
        In Clay v. United States, 199 F.3d 876, 880 (6th Cir. 1999), the
Sixth Circuit concluded that, under 26 U.S.C. § 7609, petitioners-taxpayers
had only twenty-days after the IRS mailed summons to a third-party bank to
challenge the summons. In rejecting petitioners’ argument that Rule 6(e)
extended this period by three-days, the court noted that 26 U.S.C. § 7609 set
the period at twenty-days “[n]otwithstanding any other rule of law.” The
court held, alternatively, that Rule 6(e) provides additional time only to a
“party,” and “[a] person becomes a party only by beginning a lawsuit, Fed. R.
Civ. P. 3, or by being joined as a party after the suit has been instituted.
A noticee of a summons under 26 U.S.C. § 7609 is not a ‘party’ unless and
until a suit is commenced. Therefore...Rule 6(e) has no application to the
time period before the filing of a petition to quash because the taxpayer has
not yet become a party.” It’s true, of course, that an entity becomes a party
by beginning a lawsuit - no service on it is required - and that was the
court’s point, highlighted by its statement that petitioners weren’t parties
until they commenced suit. (They couldn’t have been defendants, hence “is
commenced” means “commenced by petitioners.”) Its statement that entities are
“parties” after being “joined” cannot fairly be read to mean defendants or
third-parties become “parties” under the Rules before being served - a
conclusion utterly irrelevant to the case that would have been sheer dicta.
      In Howell By Goerdt v. Tribune Entertainment Co., 106 F.3d 215, 217 (7th
Cir. 1997), the Seventh Circuit held simply that an entity becomes a defendant
for purposes of subject-matter jurisdiction analysis when the plaintiff names
it in a complaint, regardless when or if the defendant is served, as long as
the defendant hasn’t been dismissed. The court noted that the district court
below never dismissed the unserved defendant, thus requiring analysis on
appeal of that defendant’s citizenship for diversity purposes. This sensible
holding does not bear on when an entity becomes a “party” for discovery, or
under the Rules generally; the court, in using the word “party” in stating
that “a party becomes a defendant not when he is served but when the complaint
naming him is filed,” meant “entity.” Otherwise, of course, someone is a
“party” before he’s even a “defendant” - before he’s named in complaint. We
can’t all be parties all the time.
                            No. 05-50727, et al.
                                     -7-

cited the APA in his amended complaint; moreover, we have rejected

similar arguments because, like here, there is no final agency

action, as the APA requires.12

     Finally, Sample argues that the court abused its discretion in

denying his motion for contempt, and his motion for costs, arising

from his efforts to serve one defendant.            The record makes clear

that no impropriety attached to this incident, and that defendants’

counsel complied with the court’s order when he realized his

mistake, justifying the court’s exercise of its wide discretion to

deny both motions.13

     Consequently, the judgment for defendants is AFFIRMED.

                                       II

     A district court has discretion, under both Federal Rule of

Civil Procedure 37 and its inherent powers, to sanction attorneys

for discovery abuse.14 Personal sanctions like those here are meant

to punish people personally culpable.15 We review sanctions imposed




     12
        See Armendariz-Mata v. U.S. Dep’t of Justice, DEA, 82 F.3d 679, 682
(5th Cir. 1996) (rejecting contention that alleged seizure of property was
final agency action).
     13
          See Whitfield v. Pennington, 832 F.2d 909, 914 (5th Cir. 1987).
     14
         See, e.g., Coane v. Ferrara Pan Candy Co., 898 F.2d 1030, 1033 n.2
(5th Cir. 1990); Toon v. Wackenhut Corrections Corp., 250 F.3d 950, 952 (5th
Cir. 2001). Sanctions under Rule 37 are limited to specific discovery
violations, serving foremost to penalize misconduct, especially when levied
against an attorney personally. See, e.g., Coane v. Ferrara Pan Candy Co.,
898 F.2d 1030, 1033 n.2 (5th Cir. 1990). Sanctions under a court’s inherent
power to punish abusive litigation practices are permissible but should be
used as a last resort, if sanctions under the Federal Rules don’t fit and
there is “bad faith.” See Toon, 250 F.3d at 952.
      15
         See supra note 14; B.F. Goodrich Tire Co. v. Lyster, 328 F.2d 411,
415-16 (5th Cir. 1964) (regarding Rule 37, “In the final analysis, a court has
a responsibility to do justice between man and man....”).
                          No. 05-50727, et al.
                                   -8-

under either authority for abuse of discretion.16 We have appellate

jurisdiction to review the order imposing sanctions here.17

     The district court abused in discretion in sanctioning AUSA

Luke because the record shows that Luke had no involvement in any

discovery abuse - or any discovery.       Luke had no involvement in the

case after August 3, 2004, his last paper filing being July 15, due

to a serious injury requiring surgery and therapy.              The only two

ostensible acts of discovery before August 3 were his innocuous

motion to stay discovery, which the court granted, and the court’s

order that Luke provide Sample with certain defendants’ addresses

so Sample could serve them, an order which the record shows

resulted from     no   misconduct   and   about   which   the   court   never

professed concern.     Although Luke didn’t officially withdraw until

September 23, when new AUSA Kilgore filed her notice of appearance

and a notice of withdrawal for Luke, and some abuse took place

between August 3 and September 23, Luke’s delay in officially



     16
        See Tollett v. City of Kemah, 285 F.3d 357, 363 (5th Cir. 2002); see
also, e.g., Smith Intern. Inc. v. Texas Commerce Bank, 844 F.2d 1194. 1199 n.3
(5th Cir. 1998) (explaining that “abuse of discretion” isn’t pejorative and
“sounds worse than it really is”).
     17
        We have general appellate jurisdiction under 28 U.S.C. § 1291.
Moreover, Luke’s and Kilgore’s appeals were timely - their April 4 notice of
appeal was within the sixty-day window applicable where “the United States or
its officer or agency is a party” under Federal Rule of Appellate Procedure
4(a)(1)(B). Their May 6 notices of appeal from the district court’s April 7
ruling, in which the court must have construed appellants’ post-trial motion
as a motion under Rule 60(b), do not themselves give us appellate jurisdiction
and do not affect the timeliness of the appeal, see Browder v. Ill. Direction,
Dep’t of Corrections, 434 U.S. 257, 263 n.7 (1978); they might function as
“amendments” to the appeal, limiting the scope of issues to the April 7 order,
see, e.g., Sanders v. Clemco, 862 F.2d 161, 164 n.3 (8th Cir. 1988), but
that’s irrelevant here because the April 7 ruling encompasses the entire issue
on appeal. Alternatively, Luke and Kilgore filed second notices of appeal
from the February 24 judgment on May 9, within fourteen days of Sample’s
appeal from that same judgment on April 28, providing appellate jurisdiction
under Federal Rule of Appellate Procedure 4(a)(3).
                          No. 05-50727, et al.
                                   -9-

withdrawing is understandable as an administrative matter, and Luke

cannot be held personally responsible for acts to which he had no

connection or exercised no oversight.             Although an attorney of

record who does little day-to-day but has supervisory authority may

be sanctioned, Luke had no involvement at all and cannot be held

strictly     liable   based   only   his   attorney   of   record   status.18

Accordingly, the sanctions order against Luke is REVERSED.

       The district court did not abuse its discretion in sanctioning

AUSA    Kilgore.      Although    the   central   discovery      violation     -

defendants’ attorney, not defendants, signing the interrogatories,

leading to inconsistent statements at a possibly unnecessary trial

- was committed by Bureau of Prisons attorney Martin Sweaney just

before Kilgore came on the scene, Kilgore was heavily involved

during trial preparation and trial itself and was, therefore,

responsible     for   preparing   witnesses    and    ensuring    that   their

testimony would cohere with their earlier statements.19                  Unlike

Luke, then, Kilgore cannot claim complete disconnection from the

case.20     But we do think it an abuse of discretion that the court

       18
        Sample argues that Luke was an “advisory attorney” and participated
ever-so-slightly in the case after August 3, but the record, including
statements by both Luke and the U.S. Attorney’s Office in his behalf, belies
that contention.
       19
        Moreover, it appears that Kilgore responded to Sample’s motion to
compel the answers (which had just been tendered), hence she worked with the
answers, and she was attorney of record when Sample complained about, and the
court warned counsel about, defendants’ failure to sign their answers.
       20
        Although sanctions under the court’s inherent power require a finding
of “bad faith,” sanctions under Rule 37 do not. See infra note 14. Under
Rule 37(d), a court can sanction for failure to answer interrogatories. That
is essentially what happened here - although answers were technically
tendered, the answers were not signed by defendants and were at times flatly
inconsistent with trial testimony, making them mostly worthless. Although
Kilgore didn’t tender them, she was responsible for ensuring their propriety -
or correcting them before a trial at which she examined witnesses on topics
                          No. 05-50727, et al.
                                  -10-

directed the money be paid to Sample; although Sample suffered some

disadvantage - albeit not much, it seems, given his penchant,

facility,   and   time   for   litigation   -   the   purposes   behind   the

sanctions would be better served if the money were to go to the

court itself. Hence we MODIFY the order,21 directing Kilgore to pay

$500 to the clerk of the United States District Court for the

Western District of Texas.




directly relating to the answers. We do not hold that she had “bad faith,”
only that she should’ve noticed a problem.
      Sample makes a throwaway request that we order Kilgore to show cause why
we shouldn’t sanction her for misleading this court on appeal. Kilgore has
been completely forthright on appeal, so we reject the request.
     21
        See Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1482
(9th Cir. 1992) (redirecting contempt payment from plaintiffs to court); New
York State Nat. Org. For Women v. Terry, 886 F.2d 1339, 1354 (2d Cir. 1989)
(same).
