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United States Court of Appeals, Second Circuit.

Barry DAVIS, Plaintiff-Appellant, v. SAINT LUKE’S-ROOSEVELT HOSPITAL CENTER, Mount Sinai Hospital, Defendants-Appellees.

No. 18-1542-cv

Decided: July 02, 2019

PRESENT: DENNIS JACOBS, RAYMOND J. LOHIER, JR., SUSAN L. CARNEY, Circuit Judges. FOR PLAINTIFF-APPELLANT: Barry Davis, pro se, New York, NY. FOR DEFENDANTS-APPELLEES: Siobhan M. Sweeney, Littler Mendelson, P.C., Boston, MA.


Barry Davis, proceeding pro se, appeals from a judgment of the District Court (Oetken, J.) dismissing his employment discrimination suit as a sanction for the threatening text messages that Davis sent his attorney. We assume the parties’ familiarity with the underlying facts and the record of prior proceedings, to which we refer only as necessary to explain our decision to affirm.

Courts have inherent authority to sanction bad-faith conduct. Chambers v. NASCO, Inc., 501 U.S. 32, 46, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991). “The sanction of dismissal,” however, “is a drastic remedy that should be imposed only in extreme circumstances, usually after consideration of alternative, less drastic sanctions.” Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 140 (2d Cir. 2007) (quotation marks omitted). Where conduct reflects “flagrant bad faith,” dismissal may be warranted “not merely to penalize” but also “to deter those who might be tempted to such conduct in the absence of such a deterrent.” Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976); see also Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 303 (2d Cir. 2009).

Here, the District Court did not abuse its discretion in dismissing Davis’s suit. The District Court found that Davis’s initial message to his attorney constituted a threat against the attorney, a mediator, defense counsel, and a representative of the Defendants. It also found that Davis’s explanations regarding the message were implausible. Davis’s second message to his attorney continued the threat. And Davis’s later apologies acknowledged that the prior messages were inappropriate and written in anger, suggesting that he understood that they were threatening in nature. The District Court considered alternative penalties, but it reasonably determined that they would be inadequate given the egregiousness of Davis’s misconduct. The District Court also reasonably determined that financial penalties were inappropriate in the circumstances.

We have considered Davis’s remaining arguments and conclude that they are without merit. For the foregoing reasons, the judgment of the District Court is AFFIRMED.

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