IN RE: Office of the Alabama Attorney General, Assistant Attorney General Lauren Simpson,

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13514
____________________
IN RE:
OFFICE OF THE ALABAMA ATTORNEY GENERAL,
ASSISTANT ATTORNEY GENERAL LAUREN SIMPSON,
Movants-Appellants.
____________________
Appeal from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 2:19-cv-00927-ECM-SMD
____________________
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2 Opinion of the Court 21-13514
Before WILSON, J ORDAN, and J ILL PRYOR , Circuit Judges.
PER CURIAM:
In litigation about death row inmate Willie B. Smith’s failure
to elect nitrogen hypoxia as his method of execution, Assistant At-
torney General Lauren Simpson from the Office of the Alabama
Attorney General represented that then-Warden Cynthia Stewart
acted on her own directive to distribute an election form to death
row inmates. But during discovery, Simpson learned that someone
superior to Stewart ordered the form’s distribution. After Simpson
notified the district court, the court conducted a show cause hear-
ing. Ultimately, the district court assessed Rule 11 sanctions against
Simpson and the Office of the Alabama Attorney General for this
misrepresentation. The Office of the Alabama Attorney General
and Simpson (collectively, the appellants) appealed the sanction or-
der, arguing that the district court abused its discretion in imposing
Rule 11 sanctions.
After careful review and with the benefit of oral argument,
we find that the district court abused its discretion in imposing Rule
11 sanctions. Thus, we vacate the sanctions order against the ap-
pellants.
I. FACTS
In March 2018, the Alabama legislature enacted a law that
permitted nitrogen hypoxia as an approved method of execution.
Ala. Code § 15-18-82.1. According to the statute, any inmate whose
death sentence was final before June 1, 2018 had thirty days from
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21-13514 Opinion of the Court 3
that date to make an election.
Id. § 15-18-82.1(b)(2). Counsel from
the Alabama Department of Corrections (ADOC Legal) informed
the appellants that it would not give any notice to the inmates.
While handling death row inmate Christopher Price’s case,
Simpson learned that Price received an election form1 from then-
Warden Stewart, which notified Price about the timeframe in
which to elect nitrogen hypoxia. After learning this, Simpson went
to Holman Correctional Facility (Holman) and spoke with Captain
Jeff Emberton about his role in distributing the form. Captain Em-
berton signed an affidavit stating that then-Warden Stewart di-
rected him to distribute the form. In response to interrogatories,
Stewart stated that she was unaware of any ADOC-directed notice
about the election period to Price or his counsel. Stewart also ex-
plained that she directed Capitan Emberton to deliver the form to
all death row inmates at Holman. As a result, Simpson inferred
that Stewart gave out the forms on her own initiative, without the
permission of ADOC. Consequently, Simpson made that argu-
ment to the court.2
1 In June 2018, the Federal Defenders for the Middle District of Alabama
drafted an election form and distributed that form to their clients at Holman
Correctional Facility.
2 Stewart’s prior directives to distribute the election form were an issue in an-
other death row inmate’s case (Nathanial Woods). Based on Stewart’s an-
swers from discovery in Price’s case, Simpson again represented to the court
in Woods’s case that Stewart distributed the form on her own initiative.
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4 Opinion of the Court 21-13514
In November 2019, Smith sued the Commissioner of ADOC
and the Warden of Holman (collectively, the defendants) for vio-
lating the Americans with Disabilities Act (ADA), alleging that he
was a qualified individual with a disability under the ADA and that
he could not make a timely election using the provided form with-
out reasonable accommodation. To support his claim, Smith al-
leged that Stewart implemented an official policy when she distrib-
uted the election form. The defendants moved to dismiss Smith’s
complaint. The defendants argued that Stewart’s distribution of
the form did not create an official ADOC policy but amounted to a
courtesy to inmates.
At the hearing on the defendants’ motion to dismiss and
Smith’s motion for stay of execution, Simpson, on behalf of the de-
fendants, explained that Stewart “took it upon herself to make sure
that every inmate had a copy” of the form and did so without con-
sulting ADOC Legal. This assertion was not based on a new inves-
tigation into Stewart’s conduct but was based on the inference
Simpson developed from the Price litigation. The district court de-
nied Smith’s motion for stay of execution. Ultimately, however,
Smith’s execution was rescheduled.
In 2021, Smith filed an amended complaint. In their answer,
the defendants again denied Smith’s allegation that ADOC had es-
tablished a program under the ADA by adopting as an official pol-
icy the distribution of the election form. Because ADOC did not
approve of Stewart distributing the form, there was no program in
which Smith, as an inmate at Holman, was eligible to participate—
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21-13514 Opinion of the Court 5
a requirement for an ADA claim.3 Simpson, on behalf of the de-
fendants, reiterated that Stewart “on her own initiative” directed
Captain Emberton to distribute the form.
As discovery progressed, Stewart sat for a deposition on May
26, 2021. There, Stewart testified that she received instructions
from a superior to distribute the form to each death row inmate.
She could not recall who she spoke with or when, but she stated
that “I know I did have a conversation” about distributing the form.
Simpson contacted ADOC Legal to investigate Stewart’s testi-
mony. Simpson spoke with several individuals at ADOC. None of
them knew about an order being given to distribute the election
form and testified to that lack of knowledge. But Warden Terry
Raybon explained that he believed someone from the central office
directed Stewart, although Raybon was on leave at the time. Alt-
hough there were conflicting statements, appellants updated their
position that someone within ADOC instructed Stewart to distrib-
ute the form.
On June 2, 2021, Simpson notified the district court of the
discrepancy. The court ordered the defendants to show cause why
sanctions should not be assessed either against the defendants or
their counsel because they repeatedly asserted a verifiable fact
3 “The Supreme Court has instructed that a disabled prisoner can state a Title
II-ADA claim if he is denied participation in
an activity provided in state prison
by reason of his disability.”
Bircoll v. Miami-Dade Cnty., 480 F.3d 1072, 1081
(11th Cir. 2007) (emphasis added).
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6 Opinion of the Court 21-13514
without evidentiary support. The defendants responded and ap-
peared before the district court for a hearing. At the hearing, Simp-
son recounted what led her to representing that ADOC did not di-
rect Stewart to distribute the form. But Simpson acknowledged
that she did not talk directly to Stewart at the time.
In a written order, the district court found that Simpson vi-
olated Rule 11 by making a factual contention without evidentiary
support and without conducting a reasonable inquiry. The district
court also found that Simpson’s conduct rose “to the level of reck-
lessness” and was akin-to-contempt. The district court then for-
mally reprimanded the Office of the Alabama Attorney General
and Simpson and imposed a monetary sanction ($1,500) against
Simpson. The appellants timely appealed.4
II. STANDARD OF REVIEW
“We review Rule 11 sanctions under the abuse-of-discretion
standard.”
Kaplan v. DaimlerChrysler, A.G., 331 F.3d 1251, 1255
(11th Cir. 2003). A district court abuses its discretion by imposing
sanctions if it “base[s] its ruling on an erroneous view of the law or
on a clearly erroneous assessment of the evidence.”
Cooter & Gell
v. Hartmarx Corp., 496 U.S. 384, 405 (1990).
4 The State of Alabama executed Smith on October 21, 2021. As a result,
Smith’s counsel said that they would not file a brief in this case. The court
appointed amicus curiae to defend the district court’s decision. We thank
counsel for their diligent service.
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21-13514 Opinion of the Court 7
III. ANALYSIS
The appellants argue that (1) the district court used the
wrong standard to impose sua sponte Rule 11 sanctions, and (2)
regardless of the standard, the district court abused its discretion in
imposing Rule 11 sanctions.
When an attorney files a pleading, written motion, or other
paper, the attorney certifies that “to the best of the person’s
knowledge, information, and belief, formed after an inquiry rea-
sonable under the circumstances,” there is “evidentiary support”
for the factual contentions. Fed. R. Civ. P. 11(b)(3). If Rule 11(b)
is not complied with, the court may impose an appropriate sanc-
tion after notice and reasonable opportunity to be heard. Fed. R.
Civ. P. 11(c)(1). For the court to impose sanctions, the court may
order a party to show cause explaining why specified conduct has
not violated Rule 11(b). Fed. R. Civ. P. 11(c)(3).
Rule 11 does not indicate whether a different standard for
reviewing conduct is required for court-imposed sanctions as op-
posed to when a party requests sanctions. But the Advisory Com-
mittee Notes from the 1993 Amendment regarding sua sponte
sanctions explain that “[s]ince show cause orders will ordinarily be
issued only in situations that are akin to a contempt of court, the
rule does not provide a ‘safe harbor’ to a litigant for withdrawing a
claim, defense, etc., after a show cause order has been issued on the
court’s own initiative.” Fed. R. Civ. P. 11 advisory committee’s
note to 1993 amendment.
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8 Opinion of the Court 21-13514
As the appellants correctly noted, we joined other circuits in
their akin-to-contempt interpretation for court-imposed sanctions.
Kaplan, 331 F.3d at 1256. But we left deciding the mens rea require-
ment for court-imposed sanctions for another day.
See id. The
appellants argue that although the district court referenced the
akin-to-contempt standard, the district court should have also been
required to find subjective bad faith before levying sanctions.
Again, we need not resolve the mens rea standard in this
case because we find that the appellants’ conduct during the litiga-
tion was reasonable under the circumstances and thus does not
meet the bar for sanctions under Rule 11, which only requires rea-
sonableness under the circumstances.
“The standard for testing conduct under amended Rule 11 is
reasonableness under the circumstances.”
United States v. Milam,
855 F.2d 739, 743 (11th Cir. 1988) (internal quotation marks omit-
ted). In determining reasonableness under the circumstances, we
employ a two-step inquiry: first “whether the party’s claims are ob-
jectively frivolous” with “no reasonable factual basis”; and second,
“whether the person who signed the pleadings should have been
aware that they were frivolous” after conducting a reasonable in-
quiry.
Baker v. Alderman, 158 F.3d 516, 524 (11th Cir. 1998).
Here, the appellants had a reasonable factual basis to sup-
port their representation that Stewart directed the distribution of
the form on her own initiative. First, ADOC Legal told the appel-
lants that ADOC had no intent to notify the death row inmates
about the change in the law—let alone to distribute a form to allow
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21-13514 Opinion of the Court 9
for the election. Second, ADOC Legal and appellants were equally
surprised to learn that a form had been distributed. Third, Simpson
immediately went to Holman and spoke with Captain Emberton,
who explained that Stewart directed him to distribute the form.
Fourth, as discovery in the Price litigation proceeded, appellants
sought written clarification from Stewart about the distribution of
the form. Fifth, Stewart’s answers showed that she knew that
ADOC had no plans to give notice of the new election period to
the death row inmates. Finally, Stewart directly stated that she or-
dered Captain Emberton to distribute the form. Based on those
facts, there was enough information for Simpson to infer that
ADOC did not authorize the distribution of election forms and that
Stewart distributed the forms on her own accord.
We do agree with the district court that Simpson could have
done more, such as talking directly with Stewart. But Simpson’s
failure to talk with Stewart, in this case, does not rise to sanctiona-
ble conduct. Specifically, we find that Simpson conducted a rea-
sonable inquiry once she learned the form had been distributed to
the inmates. She spoke with ADOC Legal about the distribution
of the form and ultimately learned Stewart had directed its distri-
bution.
We note that there was a difference in the litigation between
the cases of Price and Smith. In the Price litigation, it did not mat-
ter who ordered the forms’ distribution, but that Price received the
form. While in the Smith litigation, the person who ordered the
form’s distribution was highly relevant for Smith’s ADA claim.
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10 Opinion of the Court 21-13514
The district court noted that these differences matter and factor
into whether Simpson conducted a reasonable inquiry. While we
agree that those differences matter, their significance does not un-
dercut our conclusion that appellants acted reasonably under these
circumstances. Simpson conducted (a perhaps imperfect) inquiry
into the source of the directive to distribute the election forms dur-
ing the Price litigation. Although Simpson did not undertake a new
investigation for Smith, Rule 11 does not explicitly require that the
appellants conduct a brand new inquiry into the same issue for
which they already conducted an inquiry and developed an answer,
especially considering the evidence showing ADOC never in-
tended to distribute the form.
We also highlight that once Stewart testified in her deposi-
tion that a superior ordered the distribution of the election form,
Simpson began investigating that statement and spoke with several
individuals within ADOC who would have had knowledge about
whether ADOC ordered distribution of the form. Once she com-
pleted that investigation, Simpson promptly notified the district
court.
IV. CONCLUSION
We find that the district court abused its discretion in sanc-
tioning the Office of the Alabama Attorney General and Assistant
Attorney General Simpson. Thus, we vacate the district court’s
sanctions order.
VACATED AND REMANDED.
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