UNPUBLISHED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Affirmed by unpublished per curiam opinion.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, SANDRIDGE & RICE, P.L.L.C., Charlotte, North Carolina, for Appellee.

ON BRIEF: Jim D. Cooley, Patricia E. Dowds, WOMBLE, CARLYLE, 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Unpublished opinions are not binding precedent in this circuit.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 similar Title VII action against his employer arising from a then-pending

EEOC right to sue notice, released the defendant from a putative settlement 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.

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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 evidences" 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 position "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 anonymous 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] ASSISTANCE," 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:

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[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 `[expletive 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. Following 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 attorneys' fees and costs against the plaintiff. On August 1, 1997, Richardson filed a motion to enforce the settlement agreement. On August 29,

1997, the district court granted the Board's motion and denied Richardson'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 administration of justice or so as to undermine the integrity of the judicial process, 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 findings 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

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an attempt to persuade her not to testify or to alter or modify her testimony 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 testified 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 Richardson's personnel file known to have been typed by him. JA 322-23.

The expert noted similarities in the letters' typeface (pica) and character 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 "assistant."

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

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second letter also recites that Richardson was seeking assistance from

a second attorney (in addition to the one representing him in the settlement). 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 anyone 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 evidence." Based on the weight of the evidence adduced, we hold that

the district court did not commit clear error in finding that the defendant 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

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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 possessed the inherent power to take steps to protect the integrity of the

judicial process and of the court itself. As we have instructed previously:

[W]hen a party deceives a court or abuses the process at a

level that is utterly inconsistent with the orderly administration 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 deference" 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.

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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 client's blameworthiness if the wrongful conduct is committed by the

attorney, (3) the prejudice to the judicial process and the administration 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 prejudice, 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 filing 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-

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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 lawsuit would tempt fate and risk repetition of Richardson's abusive

behavior. We hold, therefore, that the court did not abuse its discretion 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 citations 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 quotations and citations omitted).

Here, Richardson's misconduct forced the Board to incur additional 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 settlement 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

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clerk testified that on the day scheduled for the retrial, Richardson

came to the office and asked if the trial would take place. "He continued to say that it [the case] was not settled. That he had tried to contact 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 plaintiff 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 settlement 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 letters, the court wrote:

Counsel for plaintiff concedes that "[t]he March, 1997 letters, 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 constitute "a basis to discharge Mr. Richardson [from employment, 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 settlement."

The undersigned, although an admirer of counsel's intelligence, fails to see how civil damages, criminal charges and

penalties, and termination of employment might all be warranted, yet the offending party remain[s] entitled to enforcement 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.

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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 wrongdoing, 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.

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