United States District Court, S.D. Mississippi, Northern Division
ANDRE FUNCHES, SR. PLAINTIFF
MISSISSIPPI DEVELOPMENT AUTHORITY, et al. DEFENDANTS
KEITH BALL UNITED STATES MAGISTRATE JUDGE.
the Court is Defendants' Motion for Sanctions . For
the following reasons, the Court finds that it should be
Andres Funches, Sr., proceeding pro se, has filed at
least five suits against his employer, the Mississippi
Development Authority (“MDA”). Each of the five
suits, including the one sub judice, alleges that
MDA and various MDA employees engaged in some form of
employment discrimination. In this particular suit, many, if
not all, of Funches's allegations stem from a written
reprimand he received on April 19, 2017.  at 3-4.
moved to dismiss this case on May 31, 2018. . On June 18,
2018, Funches filed his response. .
attached an exhibit [5-1] to his response, which contains
three categories of documents. The first is a copy of the
April 2017 written reprimand mentioned in his Complaint,
which references “seventeen photographs of a salacious
nature of another employee.” See [5-1] at 1-2,
filed under seal. The second category of documents is a
series of photographs, presumably the same as those
referenced in the reprimand, several of which depict
Funches's co-worker nude or semi-nude. [5-1] at 3-25,
filed under seal. And the third is a portion of a report
entitled, “Confidential MDA Personnel Investigation,
” which relates to an investigation of Funches's
allegation that the subject co-worker received the promotion
at MDA by allowing the hiring official to engage in sexual
activity with her. [5-1] at 26-27, filed under seal.
presented his response and attached exhibit to the
Clerk's Office for conventional filing. The Clerk's
Office received Funches's response and exhibit for
filing, but sua sponte filed the exhibit under seal.
The exhibit remains under seal.
have moved for sanctions pursuant to Rule 11 of the Federal
Rules of Civil Procedure. Specifically, Defendants cite Rule
11(b) which provides:
By presenting to the court a pleading, written motion, or
other paper . . . an attorney or unrepresented party
certifies that to the best of the person's knowledge,
information and belief, formed after an inquiry reasonable
under the circumstances: (1) it is not being presented for
any improper purpose, such as to harass, cause unnecessary
delay or needlessly increase the cost of litigation. . . .
Fed. R. Civ. P. 11(b). Defendants argue that Funches did not
file the photographs for any legitimate purpose and that the
photographs are “irrelevant” and were filed
“solely for the purposes of harassment and
embarrassment.”  at 2-3.
subject photographs are explicitly referenced in the April
2017 reprimand, which is the subject of Funches's
Complaint. The Court cannot, therefore, find that the
photographs are completely irrelevant, or that Funches does
not at least believe they are relevant, to his claims or
response to Defendants' motion. Accordingly, the Court
cannot find that Funches filed them solely to harass and
embarrass or for an improper purpose, as required by Rule
another basis for sanctions, Defendants cite a Text-Only
Order entered by Magistrate Judge John C. Gargiulo in another
case Funches filed against Defendants. The Text-Only Order
states, in relevant part, “[s]hould Plaintiff desire to
file any of the subject photographs into the record, he must
first file a motion seeking leave of court to do so.”
Funches v. Miss. Dev. Auth., et al., Civil Action
argue that “Plaintiff has been put on notice that
filing these photographs with the Court is inappropriate,
” and therefore, he should be sanctioned for filing
them.  at 3. Judge Gargiulo's order does not, however,
prohibit Plaintiff from filing the photographs; rather, it
required Funches to “first file a motion seeking leave
of court to do so.” Judge Gargiulo entered the
Text-Only Order as his ruling on a motion for protective
order filed by Defendants in the other case. No. motion for
protective order has been filed by Defendants in this case.
In his response to Defendants' motion for sanctions in
this case, Funches, a pro se plaintiff, asserts that
he has not violated any order in this case and that
“this case . . . is absolutely different [from the
other case], with two entirely different judges . .
. .”  at 3 (emphasis in original). Giving Funches
the benefit of the doubt under these circumstances, the
undersigned finds that Funches should not be sanctioned in
Funches is hereby instructed that should he wish to file the
subject photographs in any case before the United States
District Court for the Southern District of Mississippi, he
must first file a motion seeking leave and permission of the
Court to ...