MEMORANDUM
FREDERICK MOTZ, District Judge
Plaintiff, who is confined at the Maryland Correctional Institution for Women ("MCI-W") in Jessup, Maryland, filed a complaint alleging that in November of 2008 her cell was searched and personal property was broken and destroyed by Correctional Officer Craig Davis, who also used vulgar and offensive language. She states that she complained about Davis's actions and, as a result, she has been subject to daily harassment by Lieutenant Bridget Dailey-Davis, who is the wife of the correctional officer. Plaintiff complains that Lieutenant Dailey-Davis has retaliated against her by placing her on lock up on more than one occasion, fabricating reports, and denying her medical treatment. ECF No. 1. She further claims that Warden Shell has been made aware of the abuses, but has failed to take action to protect her. Finally, plaintiff claims that Security Chief Briscoe has retaliated against her for the filing administrative remedies by terminating her from her job without cause. Id.
On January 29, 2010, plaintiff filed her court-ordered supplement. ECF No. 7. She complains that in January of 2009, Lt. Dailey-Davis had her housed with an inmate that was a known threat to her; subsequently placed her in a protective custody isolation cell without clothes or bedding; and indicated that she would tamper with her food. Plaintiff asserts that she became sick, was refused access to medical treatment, passed out, and was taken to the medical unit where she remained for two weeks. She further acknowledges that she is housed in the mental health unit and that her psychological issues, i.e., voices in her head, are directly traceable to the stress she has experienced from the actions of defendants. ECF No. 7. Plaintiff requests a temporary restraining order and monetary damages.
On September 20, 2010, defendants filed a motion for summary judgment, which remains unopposed as of the within signature date. ECF No. 20. The motion may be decided without oral hearing. See Local Rule 105.6. (D. Md. 2010).
On September 20, 2010, notice of defendants' dispositive filing was sent to plaintiff pursuant to the requirements of Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975).
Standard of Review
Fed.R.Civ.P. 56(c) provides that:
[Summary judgment] shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
The Supreme Court has clarified that this does not mean that any factual dispute will defeat the motion:
By its very terms, this standard provides that the mere existence of
some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no
genuine issue of
material fact.
Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 247-48 (1986) (emphasis in original).
"The party opposing a properly supported motion for summary judgment `may not rest upon the mere allegations or denials of [his] pleadings,' but rather must `set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed.R.Civ.P. 56(e)). The court should "view the evidence in the light most favorable to. . . . the nonmovant, and draw all inferences in her favor without weighing the evidence or assessing the witness' credibility." Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002). The Court must, however, also abide by the "affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial." Bouchat, 346 F.3d at 526 (internal quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993), and citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)). "The party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials of [its] pleading, but must set forth specific facts showing that there is a genuine issue for trial." Rivanna Trawlers Unlimited v. Thompson Trawlers, Inc., 840 F.2d 236, 240 (4th Cir. 1988).
Affording the pro se complaint a generous interpretation, plaintiff has raised claims relating to property destruction, verbal harassment, retaliation, loss of job, denial of medical care, and unconstitutional conditions of confinement. Each claim shall be examined seriatim.
Analysis
According to the unopposed record Plaintiff was received at MCI-W on June 27, 2001 and is currently housed on disciplinary segregation. She has epilepsy and a history of seizure disorder. In addition, defendants contend that she has psychological problems which include behavior and mood disorders, depression, and attempts of self-harm, which involve ingesting foreign objects such as batteries. ECF No. 20 at Exs. 2 3.
To the extent that plaintiff claims that her property was destroyed during a cell search, she has failed to state a constitutional claim. In the case of lost or stolen property, sufficient due process is afforded an inmate if she has access to an adequate post-deprivation remedy. See Parratt v. Taylor, 451 U. S. 527, 542-44 (1981), overruled on other grounds by Daniels v. Williams, 474 U. S. 327 (1986). The right to seek damages and injunctive relief in Maryland courts constitutes an adequate post-deprivation remedy. See Juncker v. Tinney, 549 F. Supp. 574, 579 (D. Md. 1982).
Plaintiff may seek relief through the Maryland's Tort Claims Act and the Inmate Grievance Office.
Juncker relied on Parratt dismissing a plaintiff's due process claims. Although Juncker dealt with personal injury rather than property loss, its analysis and conclusion that sufficient due process is afforded through post-deprivation remedies available in the Maryland courts also applies to cases of lost or stolen property.
Further, verbal harassment is not actionable under § 1983. See Barney v. Pulsipher, 143 F.3d 1299, 1310 n. 11 (10th Cir. 1998); accord Shabazz v. Pico, 994 F.Supp. 460, 474 (S.D. N.Y. 1998); see also McDowell v. Jones, 990 F.2d 433, 434 (8th Cir. 1993); Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987); Cole v. Cole, 633 F.2d 1083, 1091 (4th Cir. 1980); Partee v. Cook County Sheriff's Office, 863 F.Supp. 778, 781 (N.D.Ill. 1994) (inmate's "allegations of verbal threats, racial epithets, and continued harassment" failed to meet objective component of Eighth Amendment). Plaintiff's naked assertions that MCI-W staff used foul language and harassed her do not constitute colorable constitutional claims and are subject to dismissal.
Moreover, while retaliation against an inmate for the exercise of a constitutional right states a claim under 42 U.S.C. § 1983, see American Civ. Liberties Union v. Wicomico County, 999 F. 2d 780, 785-86 (4th Cir. 1993), plaintiff "[b]ears the burden of showing that the conduct at issue was constitutionally protected and that the protected conduct was a substantial or motivating factor in the prison officials' decision . . ." Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). There is no factual support in the record or complaint that defendants' actions were grounded in retaliatory animus. Rather, plaintiff has raised the claim in a conclusory manner and the unopposed materials before the court show that defendants had neutral-fact-based reasons for placing her on protective custody, citing her with adjustment infractions, and removing her from the MCI-W Sewing Shop.
Plaintiff also raises a bald assertion that Dailey-Davis denied her medical care in January of 2009. The medical record submitted to the court belies this claim and shows that plaintiff has received continuous medical monitoring for her epilepsy, gastro esophageal reflux, and ingestion of hazardous products. In addition, she has received extensive psychological treatment and medication from prison staff for her mood disorders, acts of self-harm, and suicidal ideation. ECF No. 20, Ex. 2, pgs. 1-59; Ex. 3, pgs. 1-141. No Eighth Amendment violation has been demonstrated. See Estelle v. Gamble, 429 U.S. 97, 106 (1976).
Deliberate indifference in the context of a prisoner failure-to-protect claim requires that a defendant "knows of and disregards an excessive risk to inmate health and safety; the official must both be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994); see also Parrish ex rel. Lee v. Cleveland, 372 F.3d 294, 302-303 (4th Cir. 2004); Risk v. Johnson, 131 F.3d 1092, 1096 (4th Cir. 1997). Plaintiff's failure to protect claim also fails as she has not provided any factual particulars showing that she was in danger of being harmed when placed in a protective custody cell at MCI-W.
Finally, to demonstrate that the conditions of her protective custody cell confinement violated her Eighth Amendment rights, plaintiff must establish that she was knowingly deprived of the "minimal civilized measure of life's necessities." See Hadix v. Johnson, 367 F.3d 513, 525-26 (6th Cir. 2004). Only extreme deprivations are adequate to satisfy the object component of an Eighth Amendment claim. See Hudson v. McMillian, 503 U.S. 1, 9 (1992). Such deprivations may be demonstrated by producing evidence of a serious or significant physical injury resulting from the challenged conditions, see Strickler, 989 F. 2d at 1380-81; Rish v. Johnson, 131 F.3d 1092, 1096 (4th Cir. 1997), or by demonstrating a substantial risk of serious harm resulting from the unwilling exposure to the challenged conditions. See Helling v. McKinney, 509 U.S. 25, 33-35 (1993). The key in determining whether prison conditions become cruel and unusual is to examine the effect on the inmate. See Rhodes v. Chapman, 452 U.S. 337, 364 (1981). Plaintiff's conditions of confinement claim fails to meet the aforementioned standard. The court observes that plaintiff has not factually discussed how the conditions of the protective custody cell deprived her of a civilized need or caused her injury.
There is no showing that plaintiff's limited confinement in the protective custody cell exacerbated her mental health conditions or caused her physical injury.
Conclusion
For the aforementioned reasons defendants' unopposed motion for summary judgment is granted and judgment shall be entered in favor of defendants and against plaintiff. A separate order effecting the rulings made in this opinion is entered herewith.
Date: November 9, 2010
ing the portion that was spent on bills.
Richard, who resides in Atlanta, Georgia, testified that the funds that were in Mrs. Jones's account should have been transferred to one account before any disbursements were made. He also testified that he admitted having a conversation with Marybelle about paying a bill although he was uncertain of its nature. He thought the amount was around $300 or $400. He did not give authorization for the $1000 withdrawal. Rather, he thought he was authorizing a withdrawal of $400 at most. He also authorized Marybelle to write other checks for Mrs. Jones's medical bills.
Marybelle testified that at the time that Richard accompanied Marybelle and Mrs. Jones to open the Chase account, Marybelle gave Richard a copy of a letter that was signed by Mrs. Jones. According to Marybelle, Mrs. Jones apprised Richard of its contents. She also stated that Mrs. Jones had previously mentioned to Richard the desires that she expressed in that letter.
Cynthia, a California resident, testified that on March 9, 2009, she placed a $5000 deposit into her account from money that came from Mrs. Jones through Marybelle. Marybelle sent her a cashier's check in that amount. Cynthia believed that Richard had authorized that withdrawal from Mrs. Jones's account. She based her belief on the letter that was shown to Richard. The purpose of the letter was to let Richard know that Mrs. Jones wanted Cynthia to have $5000. Cynthia actually wrote the words for her mother.
The letter dated February 13, 2009 was introduced into evidence. Cynthia explained that she typed the letter for Mrs. Jones based on her mother's wishes. The letter stated that it was written by "Mama" to "Richard." The letter expressed that the writer wanted to send "Claudy" $5000 to help with her expenses for coming to support Mrs. Jones during the two court appearances Mrs. Jones made in the interdiction matter. It further stated that the writer wanted to send "Cynthia" $5000 for helping Henry to come and support Mrs. Jones during that time. The writer explained that when Richard, Marybelle, and Mrs. Jones went to the bank during Mardi Gras, Mrs. Jones wanted to have cashier's checks made out to Claudy and Cynthia for $5000 each.
Cynthia acknowledged that under the consent judgment, Richard must give authorization for a financial transaction to occur. She stated that she knew the letter had been given to Richard when Richard, Mrs. Jones, and Marybelle went to the bank. Cynthia was told that Richard did not say anything when he read the letter. Because of his silence and because Richard was present along with Marybelle and Mrs. Jones at the time the letter was given to Richard, Cynthia considered those circumstances to constitute authorization for the withdrawal.
Marybelle testified that Mrs. Jones and Richard had a conversation when he accompanied them to the bank. She testified that Richard did not say anything.
Cynthia testified that after she deposited the money on March 9, Richard sent her a letter that was dated March 18, 2009. According to Cynthia, she understood from the letter that Richard was acknowledging his awareness of the mother's request and that he authorized the $5000 withdrawal to Cynthia.
The letter from Richard, which was introduced into evidence, stated:
It is my understanding that you recently received a Cashier's Check in the amount of $5000 from Marybelle from Mom's Liberty Bank Savings Account. I received the letter from Mom requesting that I send you a check in that amount. While it was my intent to comply with Mom's letter, I felt it was better to consolidate all of Mom's funds in one bank before beginning disbursement. While I did not authorize sending the check as it was done, I understand why Marybelle did it. To make sure that I follow the Court Order and send each of Mom's children a quarterly statement of Mom's finances, I need information from you about those funds.
Cynthia explained that the $5000 was given to her by her mother to compensate her for transportation and lodging costs for Henry and Cynthia. She applied the $5000 to some of her expenses.
Richard denied authorizing the $5000 withdrawals that were given to Cynthia and Claudette. He acknowledged that he read the letter wherein Mrs. Jones purportedly expressed her desire to send Claudette and Cynthia $5000 each. He testified that the letter was given to him when they went to the bank on March 4, 2009 to open an account at Chase. According to Liberty Bank's documentation, the money was withdrawn two days later on March 6, 2009.
Richard testified that he concluded that his mother knew nothing about the letter after he asked his mother questions regarding its contents. He decided to do nothing about the request until they had finished moving the money into the account. He did not say anything to Marybelle. Rather, he told his mother he would discuss the matter with her at a later time.
Richard stated that he sent a letter to Cynthia dated March 18, 2009. When asked whether the letter was for the purpose of post-authorizing the withdrawal of funds, he replied "absolutely not." At the time he sent the letter to Cynthia, the money was already withdrawn from Mrs. Jones's account. So, he was attempting to obtain documentation in order to account to all of his sisters and brothers for the money that had been in his mother's account. He learned on the week after the withdrawals that the money had been moved. Of the $30,000 that was withdrawn from the Liberty bank, $20,000 was deposited in the Chase Bank in his mother's savings account. The remainder of the money was made out in $5000 checks to Cynthia and Claudette, respectively. He was adamant that he did not authorize those $5000 checks. He believed there was nothing he could do after the fact other than request an accounting of the two $5000 payments.
Richard further testified that despite asking Marybelle for an itemization of the mother's monthly expenses, Marybelle has not done so. He also testified that he did write a check after the consent judgment without Marybelle's signature. He wrote one check to the curator at the court's direction. He also made some withdrawals without Marybelle's signature. These were withdrawals for reimbursement for his expenses in 2007 and 2008. The withdrawals were made around March 2009. He did not obtain Marybelle's signature because she was not on the account.
Medical Information and Visitation
The trial judge heard conflicting testimony regarding whether Marybelle prevented some children from visiting the mother and whether she failed to provide Dr. Jones with medical information.
Henry's affidavit was introduced into evidence. According to Henry and Cynthia, Marybelle never interfered with their communication with Mrs. Jones. Henry attested that Marybelle encouraged all of the children to communicate with Mrs. Jones. Cynthia testified that when she visited her mother, the other children had not visited on that occasion.
Marybelle testified that part of her duties as curator for the daily caregiving of her mother was to have the mother interact with all of her children. She agreed that it was incumbent upon her as a daily caregiver to make certain that if one of her siblings called to see the mother, she would coordinate that visit. She denied she ever prevented visitation. She said that no one called to say that they were coming to visit the mother. However, if one of the siblings walked into the house without knocking, she would say that the mother was in the bathroom and she would not engage in any further dialogue such as asking the sibling to return.
Marybelle stated that she never prevented Dr. Jones from visiting with Mrs. Jones.
On the other hand, Dr. Jones, a resident of Mississippi, testified that he was denied entrance into the residence where Miriam and Mrs. Jones resided. Miriam resided on the other side of the house. It was not unusual for him to visit his mother on a monthly basis. He described a visit where the door was locked. He knocked but no one approached the door. He had a key and opened the door. He was told he should have called first. On another occasion, in January 2009, the door was locked again although someone was home. When he knocked and disclosed his presence, he was told that the mother was in the bathroom. No one told him to come back later. And, no one told him he could wait. He stood at the door approximately 10 to 12 minutes before leaving.
He attempted a visit in February 2009. He knocked on the door but the door was locked. So, he went to Miriam's side and when he attempted to visit with his mother on the opposite side, he discovered that the car was gone and that Marybelle and Mrs. Jones were no longer there. He stated that when he first arrived, the two women were present.
Dr. Jones testified that Mr. Jones accompanied Dr. Jones on Dr. Jones's last visit in April 2009. Together they knocked on the door but had called beforehand. Marybelle told Mr. Jones that the mother was in the bathroom. After arriving, the two men stood at the door for 15 to 20 minutes. They tried the key but found that the door was barricaded. Dr. Jones explained that all of the siblings had a key to get into the mother's house. There was no problem in the past. He described multiple occasions where he was denied access to his mother. He stated that visitation progressively deteriorated from having no locked doors to a barricaded door. Furthermore, there had been no requirement that the children call prior to visiting. However, Marybelle testified she knew nothing about a barricaded door. In addition, Marybelle testified that she thought it was necessary to lock the inner door of Mrs. Jones's apartment for security reasons.
Mr. Jones's testimony regarding the difficulties visiting the mother was corroborated by Dr. Jones.
There was also testimony regarding reported difficulties obtaining medical information, which Marybelle disputed.
Richard testified that he spoke with Marybelle on three different occasions regarding the consent judgment's requirement that Marybelle inform Dr. Jones concerning Mrs. Jones's medical matters.
Marybelle testified that the consent judgment appointed Dr. Jones curator for Mrs. Jones's medical care and administration of all issues relating to that medical care. Even so, she admitted that she had taken her mother to two post-consent judgment Tulane University medical appointments and she did not know if Dr. Jones had any knowledge of those visits. She had no idea why Dr. Jones had not been consulted about these visits. She explained that she never really communicated with Dr. Jones before the consent judgment — the communication was not there. Also, she stated that Dr. Jones did not know that Dr. Markesha Fleury was Mrs. Jones's internist until Cynthia sent an e-mail to Mrs. Jones's children.
Dr. Fleury testified that she saw Mrs. Jones for the first time around January 2009. She saw her on several occasions in 2009. Had she known there was an order stating that Dr. Jones was the appointed curator for the medical care, she would have called him to discuss the treatment that she rendered. She stated that Marybelle never provided her with information on how to get in touch with Dr. Jones until the last visit.
Dr. Jones testified that he was not notified of any of Mrs. Jones's visits with Dr. Fleury. Furthermore, no physician ever contacted him about the mother's care. He was unaware of the Tulane University medical visits that took place after the consent judgment until they were in court on the last occasion. Also, on one occasion he saw his mother wearing a wrist splint and a knee splint but he was unaware of the care that was being given.
Dr. Jones stated that after the consent judgment, he asked Marybelle for the names and addresses of Mrs. Jones's doctors. Marybelle produced a bag of old prescription bottles that predated Hurricane Katrina and told him that those were the medications the mother was taking and the names of her doctors were written there. In contrast, Marybelle testified that she provided Dr. Jones with current information when she gave him the medications. She further stated that Dr. Jones never asked for names and telephone numbers of the doctors. She said that she provided a list of doctors and telephone numbers and asked Cynthia to forward the list through e-mail to everyone.
Cynthia and Marybelle testified that Cynthia sent the e-mail on February 20, 2009 to everyone at Marybelle's direction. Marybelle prepared the e-mail but Cynthia forwarded it to everyone because Marybelle did not have all of the e-mail addresses.
Dr. Jones testified that he found it very difficult to fulfill his duties and obligations as a medical curator without seeing his mother face-to-face at least on some occasions. He gained information about the mother from others. He testified that in the four months prior to the February 20, 2009 e-mail, he was never advised that those listed doctors were seeing his mother. In addition, the e-mail did not inform him as to whether the doctors were actually treating the mother, the time of the visits, and the purposes for those visits. Moreover, the e-mail did not indicate that the doctors were made aware that they needed to contact Dr. Jones. He received an e-mail from Cynthia with the names of the mother's doctors a week before they were due to come to court. That e-mail was the only communication he has had about the medical care that was given to his mother.
Marybelle stated that she believed the consent judgment imposed no requirement on her to contact Dr. Jones for each doctor's visit. Rather, she thought that Dr. Jones was going to contact Marybelle.
Analysis
"A contempt of court is any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority." La.C.C.P. art. 221. There are two kinds of contempts of court: direct and constructive. Id. The willful disobedience of any lawful judgment or order of the court constitutes a constructive contempt of court. La.C.C.P. art. 224(2). "A person may not be adjudged guilty of a contempt of court except for misconduct defined as such, or made punishable as such, expressly by law. The punishment which a court may impose upon a person adjudged guilty of contempt of court is provided in R.S.13:4611." La.C.C.P. art. 227.
The appellants were found in contempt for the willful disobedience of a court order, which constitutes constructive contempt of court. La.C.C.P. art. 224(2). "A contempt of court proceeding is either criminal or civil, which is determined by what the court primarily seeks to accomplish by imposing sentence." Billiot v. Billiot, 01-1298, p. 4 (La. 1/25/02), 805 So.2d 1170, 1173 citing Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622, 627 (1966). "In a criminal contempt proceeding, the court seeks to punish a person for disobeying a court order, whereas in a civil contempt proceeding, the court seeks to force a person into compliance with a court order." Id., citing State in the Interest of R.J.S., 493 So.2d 1199, 1202 n. 7 (La. 1986) (citing Shillitani, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966)).
In the present case, the trial judge not only imposed attorney's fees as the punishment for violating the consent judgment, she also rendered other rulings seeking to force the appellants into compliance with the consent judgment. In order to force compliance, she rendered the following rulings: (1) she ordered Claudette and Cynthia to return to Mrs. Jones, via Richard, the sum of $5000 each within 30 days of the judgment; (2) she ordered Marybelle's name to be immediately removed from any and all accounts of Mrs. Jones's; and (3) she ordered Marybelle not to take Mrs. Jones to any bank without specifically being accompanied by Richard. Through these orders, the trial judge was seeking to force compliance with the consent judgment. Since the trial judge's intent was to have the funds restored and to force compliance with the earlier judgment, we find that the contempt proceedings were civil in nature. Compare: Parish of Jefferson v. Lafreniere Park Foundation, 98-345, p. 9 (La. App. 5 Cir. 9/15/98), 720 So.2d 359, 365, writ denied, 98-2598 (La. 10/28/98), 723 So.2d 965 (Contempt proceedings were civil in nature where judge's intent was to have the funds restored and to force compliance with the earlier judgment).
In a civil contempt, the stringent criminal burden of proof and standard for appellate review do not apply. Id. The burden of proof for civil contempt is by a preponderance of the evidence and appellate review is by the manifestly erroneous standard. Id.
"On appellate review of a criminal conviction, the reviewing court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient for a rational trier of fact to conclude that every element of the crime of which the defendant was convicted was proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676 (La. 1984)." State in Interest ofR.J.S., 493 So.2d 1199, 1202. "We review a finding of criminal contempt employing the Jackson standard." State in the Interest of R.J.S., supra, 492 So.2d at 1202.
To find a person guilty of constructive contempt, it is necessary to find that he violated the order of court intentionally, knowingly and purposefully, without justifiable excuse. Brunet v. Magnolia Quarterboats, Inc., 97-187 (La. App. 5 Cir. 3/11/98), 711 So.2d 308, writ denied, 98-0990 (La. 5/29/98), 720 So.2d 343, cert. denied, Polaris Ins. Co., Ltd. v. Brunet, 525 U.S. 1104, 119 S.Ct. 869, 142 L.Ed.2d 771 (1999) (Citations omitted). Proceedings for contempt must be strictly construed, and the law does not favor extending their scope. Id. (Citation omitted).
In determining whether the parties intentionally, knowingly and purposefully, without justifiable excuse, violated a court order, the trial judge is vested with great discretion. Lafreniere Park Foundation, supra (citation omitted).
After reviewing this record, we conclude that the trial judge was not manifestly erroneous and did not abuse her vast discretion in finding that Marybelle, Cynthia, and Claudette intentionally, knowingly and purposefully, without justifiable excuse, violated a court order.
Claudette and Cynthia
The appellants argue that the judgment simply imposed upon Marybelle and Richard certain conditions to withdrawal of funds, and it did not expressly prohibit Claudette and Cynthia from accepting money from Marybelle (based on their mother's desire) for reimbursement of their expenses and for the support given during the prior interdiction proceedings.
Unless a litigant willfully disobeys a direct order of the court issued prior to the contempt rule, he should not be held in contempt, even if his acts tend to frustrate the opposing litigant. Hodges v. Hodges, 02-0489 (La. App. 3 Cir. 10/2/02), 827 So.2d 1271, writ denied, 02-2485 (La. 11/8/02), 828 So.2d 1122, citing State ex rel. Duffy and Behan v. Civil District Court for Parish of Orleans, 112 La. 182, 36 So. 315 (1904).
The jurisprudence interpreting La.C.C.P. art. 224(2) is clear that a party cannot be held in contempt unless he has been given a direct order of the court and he has willfully disobeyed or refused to honor this order. Klein v. Copeland, 482 So.2d 613, 616 (La. 1986) (per curiam) citing Ferry v. Ferry, 444 So.2d 797 (La. App. 3 Cir. 1984); Nelson v. Nelson, 421 So.2d 366 (La. App.1 Cir. 1982); City of Monroe v. Evans, 385 So.2d 912 (La. App. 2 Cir. 1980).
In this case, the trial judge stated on the record of the current proceedings that everyone entered into the consent judgment. No one disputed her statement. The consent judgment signed by the trial judge became a legal judgment. As a final, valid judgment, such an agreement may be punished by contempt. Parish of Jefferson v. Lafreniere Park Foundation, 98-345, p. 6 (La. App. 5 Cir. 9/15/98), 720 So.2d 359, 363-64, writ denied, 98-2598 (La. 10/28/98), 723 So.2d 965 (citation omitted). It follows that since Claudette and Cynthia were parties to the consent judgment, they were bound by its terms. Claudette and Cynthia agreed by their participation in the consent judgment that Richard was appointed to administer any and/all financial matters and financial interests of Mrs. Jones. And, Richard's signature on checks was required for the distribution of funds.
The trial judge heard conflicting testimony regarding Richard's alleged consent. The trial judge evidently attached greater weight to Richard's testimony that he did not consent to the withdrawal and disbursement of the funds to Claudette and Cynthia.
The manifest error standard of review precludes the setting aside of a district court's finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety. Hall v. Folger Coffee Co., 03-1734, p. 9 (La. 4/14/04), 874 So.2d 90, 98. Thus, a reviewing court may not merely decide if it would have found the facts of the case differently. Id. (Citation omitted). The reviewing court should affirm the district court where the district court judgment is not clearly wrong or manifestly erroneous. Id.
In order to reverse a trial court's determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the factfinder is clearly wrong or manifestly erroneous. The appellate court must be cautious not to re-weigh the evidence or to substitute its own factual findings just because it would have decided the case differently. Pinsonneault v. Merchants Farmers Bank Trust Co., 01-2217, p. 11 (La. 4/3/02), 816 So.2d 270, 278-79 (citations omitted). Thus, where two permissible views of the evidence exist, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Id. at 11-12, 279 (citations omitted).
Here, our review of the record indicates that the trial judge was presented with two permissible views concerning whether Richard authorized the $10,000 withdrawal and disbursement of funds to Claudette and Cynthia. The trial court's finding that Richard did not authorize the withdrawal and disbursement of the funds to Claudette and Cynthia was not manifestly erroneous. It is not the role of the appellate court to second guess the trier of fact's determination in this regard, but to review that determination for clear error. Id. at 12, 279. Accordingly, the trial judge was not manifestly erroneous in finding Claudette and Cynthia in contempt for willfully disobeying or refusing to honor the court order to which they consented.
For the reasons stated below, we also find that the trial judge properly held Marybelle in contempt for withdrawing the funds in direct violation of the court order.
Marybelle
The trial judge found Marybelle in contempt of court for various reasons. We first consider the withdrawals.
The consent judgment appointed Richard to administer any and all financial matters and financial interests of Mrs. Jones. Furthermore, Richard's signature on checks was required for the distribution of funds. When his signature could not be obtained or when he was not a signatory on an account, Marybelle still had the obligation under the judgment to obtain his authorization for disbursement.
The trial judge found Marybelle in contempt of court for withdrawing $1000 from Mrs. Jones's account without authorization from Richard. Marybelle testified that she did not ask Richard to authorize that specific amount. Richard stated that at most, he authorized $400. Since it is undisputed that Marybelle did not provide Richard with a request to withdraw the sum of $1000, the trial judge was not manifestly erroneous in finding Marybelle in contempt.
Next, the trial judge found Marybelle in contempt of court for withdrawing $10,000 from Mrs. Jones's account without authorization from Richard. Marybelle and Cynthia testified that Richard authorized the withdrawal — a fact that Richard disputed. The trial judge evidently attached greater weight to Richard's testimony. As stated previously, we find no manifest error in the trial judge's finding.
Finally, Marybelle argues that the trial judge erred in holding her in contempt for preventing visitation with her siblings and in expecting Marybelle to contact Dr. Jones regarding the mother's medical care. Again, our review the record indicates trial judge was presented with two permissible views concerning these issues. We find no manifest error in the trial judge's credibility determination and holding Marybelle in contempt.
Attorney's Fees
The appellants argue that the trial court erred in ordering them to pay attorney's fees of $250. For the reasons that follow, we amend the portion of the trial court judgment awarding $250 in attorney's fees.
An award of attorney fees is a type of penalty imposed not to make the injured party whole, but rather to discourage a particular activity on the part of the opposing party. Langley v. Petro Star Corp. of La., 01-0198, p. 3 (La.6/29/01), 792 So.2d 721, 723 (citation omitted). Attorney fees are not awarded generally in Louisiana unless authorized by statute or provided by contract. Rivet v. State, Dept. of Tramp, and Development, 96-0145 (La. 9/5/96), 680 So.2d 1154, 1160.
"The punishment which a court may impose upon a person adjudged guilty of contempt of court is provided in R.S. 13:4611." La.C.C.P. art. 227. Thus, La.C.C.P. art. 227 limits the punishment for contempt to that set forth in La.R.S. 13:4611. The pertinent provision in La.R.S. 13:4611, applicable here, provides for a fine of not more than five hundred dollars, or imprisonment for not more than three months, or both:
Except as otherwise provided by law:
(1) The supreme court, the courts of appeal, the district courts, family courts, juvenile courts and the city courts may punish a person adjudged guilty of contempt of court therein, as follows:
. . . .
(d) For any other contempt of court, including disobeying an order for the payment of child support or alimony or an order for the right of visitation, by a fine of not more than five hundred dollars, or imprisonment for not more than three months, or both.
A fine must be made payable to the court, not a party. City ofKenner v. Jumonville, 97-125, 97-210, 97-602 (La. App. 5 Cir. 8/27/97), 701 So.2d 223, 231, writ denied, 97-2890 (La. 1/30/98), 709 So.2d 718, cert. denied, Jumonville v. City of Kenner, 524 U.S. 953 , 118 S.Ct. 2371, 141 L.Ed.2d 739 (1998).
The relief sought by the mover and granted by the trial court, payment of the mover's attorney's fees, is not authorized under La.C.C.P. art. 227 and La.R.S. 13:4611(1)(d). Rogers v. Dickens, 06-0898, p. 13 (La. App. 1 Cir. 2/9/07), 959 So.2d 940, 948-49.
We find the reasoning of the Jumonville court persuasive. In that case, the contempt judgment ordered the property owners to pay $1,000.00 in "penalties" to the city. The court found that the record and judgment were clear that the "penalty" was a "fine" for the act of contempt and amended the judgment to reflect a fine payable to the court. 97-125 at 14-15, 701 So.2d at 226-27, 231. Thus, the trial judge's reference in the present case to "attorney's fees" does not end the inquiry. We must determine from the record and judgment whether the attorney fee award was actually a fine.
In In re Succession of Horrell, 07-1533 (La. App. 4 Cir. 10/1/08), 993 So.2d 354, 366-67, writs denied, 08-2880, 08-2889 (La. 3/6/09), 3 So.3d 482, the Fourth Circuit amended the portion of the judgment awarding the monetary payment to the attorneys to reflect that the payment was actually a fine payable to the Orleans Parish Civil District Court.
Here, the trial judge rendered the judgment ordering Marybelle, Cynthia, and Claudette to pay $250 in "attorney fees" "because of their contemptuous behavior." La.R.S. 13:4611 authorizes that amount as a fine. Thus, the trial judge intended to punish for the contempt in an amount allowable under the statute. We find, as in Jumonville and In re Succession of Horrell that the "attorney fees" was actually a "fine" for the acts of contempt.
For these reasons, the portion of the judgment awarding $250 in "attorney fees" is amended to reflect that the payment is actually a fine. The fine is made payable to the Civil District Court.
Conclusion
Accordingly, for the reasons stated, appellee's motion to dismiss the appeal is granted in part to dismiss the appeal from the amended consent judgment and otherwise denied. The contempt judgment is amended to reflect that the $250 in "attorney fees" is a fine for contempt and to reflect that payment by the appellants in the amount of $250 each should be made to the Civil District Court.
MOTION TO DISMISS APPEAL GRANTED IN PART AND DENIED IN PART; APPEAL FROM AMENDED CONSENT JUDGMENT DISMISSED AS UNTIMELY; CONTEMPT JUDGMENT AFFIRMED AS AMENDED.
NOTICE OF JUDGMENT AND CERTIFICATE OF MAILING
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN MAILED ON OR DELIVERED THIS DAY NOVEMBER 9. 2010 TO THE TRIAL JUDGE, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
BELHIA V. MARTIN ATTORNEY AT LAW 1100 POYDRAS STREET SUITE 2900 NEW ORLEANS, LA 70163
RODERICK ALVENDIA J. BART KELLY, III JEANNE K. DEMAREST ATTORNEYS AT LAW 909 POYDRAS STREET SUITE 1625 NEW ORLEANS, LA 70112