Opinion · Court of Appeals for the Seventh Circuit
Kenneth Oliver v. Richard B. Gramley, Warden
Kenneth Oliver v. Richard B. Gramley, Warden, 200 F.3d 465 (7th Cir. 1999)
- Type
- Opinion
- Court
- Court of Appeals for the Seventh Circuit
- Jurisdiction
- Federal
- Date
- 1999-12-29
- Topic
- general
How later courts describe this case
- although dismissal with prejudice is a permissible judicial sanction for fraud on the court, the general rule is that before dismissing a suit with prejudice as a sanction for misconduct a court should consider the adequacy of a less severe sanction
Citator
UpLaw has not yet analyzed Kenneth Oliver v. Richard B. Gramley, Warden. The absence of a flag is not a finding that it is good law.
- Cited by
- 29 opinions
OLIVER v. GRAMLEY,200 F.3d 465(7th Cir. 1999)
Kenneth Oliver, Petitioner-Appellant, v. Richard B. Gramley,
Warden, Respondent-Appellee.
No. 99-1219
United States Court of Appeals, Seventh Circuit.
SUBMITTED SEPTEMBER 3, 1999
DECIDED DECEMBER 29, 1999
William L. Browers (submitted), Office of the Attorney General, Chicago, IL, for Respondent-Appellee
Before Posner, Chief Judge, Bauer and Cudahy, Circuit Judges.
[2] When the state sought to dismiss Oliver's petition for habeas corpus on the ground that he had failed to petition the Supreme Court of Illinois for leave to appeal, he came back with an affidavit swearing that he had given prison officials the petition to file, and he also submitted what appeared to be a certificate of service. The district judge thought the certificate a forgery and the affidavit perjurious, and Oliver, while denying that he intended to commit perjury or deceive the court, does not deny that the certificate was forged (by Oliver's father) and the affidavit false.
[3] Although dismissal with prejudice is a permissible judicial sanction for fraud on the court, Kovilic Construction Co. v. Missbrenner,106 F.3d 768,773(7th Cir. 1997); Peerless Industrial Paint Coatings Co. v. Canam Steel Corp.,979 F.2d 685(8th Cir. 1992) (per curiam); Nichols v. Klein Tools, Inc.,949 F.2d 1047(8th Cir. 1991); Aoude v. Mobil Oil Corp.,892 F.2d 1115,1122(1st Cir. 1989); Wyle v. R.J. Renolds Industries, Inc.,709 F.2d 585,589(9th Cir. 1983), the general rule is that before dismissing a suit with prejudice as a sanction for misconduct a court should consider the adequacy of a less severe sanction, Ball v. City of Chicago,2 F.3d 752,758(7th Cir. 1993); English v. Cowell,969 F.2d 465,473(7th Cir. 1992); Aoude v. Mobil Oil Corp., supra,892 F.2d at 1118; see also Kapco Mfg. Co. v. C O Enterprises, Inc.,886 F.2d 1485,1496(7th Cir. 1989), and there is no indication that the district court did that here. But we do not think that such consideration is necessary in a case in which the plaintiff's fraud is criminal in character and would if undetected destroy a legitimate and dispositive defense. Cf. Wyle v. R.J. Renolds Industries, Inc., supra,709 F.2d at 591. Such behavior is so egregious, inexcusable, and destructive that no lesser sanction than dismissal with prejudice could be adequate. See Nichols v. Klein Tools, Inc., supra,949 F.2d at 1049; Anderson v. Beatrice Foods Co.,900 F.2d 388,396(1st Cir. 1990); Aoude v. Mobil Oil Corp., supra,892 F.2d at 1122; Brockton Savings Bank v. Peat, Marwick, Mitchell Co.,771 F.2d 5,11-12(1st Cir. 1985); cf. C.K.S. Engineers, Inc. v. White Mountain Gypsum Co.,726 F.2d 1202,1209(7th Cir. 1984).
[4] The request for a certificate for appealability is therefore
[5] Denied.Page 467