Bowles v. Schwarz

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 95-20438 Summary Calendar __________________

HARRY L. BOWLES,

Plaintiff-Appellant,

versus

CHARLES N. SCHWARZ, JR.; JACK O'NEILL,

Defendants-Appellees,

ANDREWS & KURTH, L.L.P.,

Defendants.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

Plaintiff,

JACK O'NEILL,

Defendant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC Nos. CA-H-94-4249 and CA-H-94-4261 - - - - - - - - - - April 15, 1996 Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:1

Harry L. Bowles appeals from the district court's dismissal

1 Pursuant to Local Rule 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. with prejudice of his consolidated cases. Bowles argues that the

district court erred by: consolidating the two cases; dismissing

his cases sua sponte; failing to enforce discovery against Joe

Reynolds; refusing to allow an attorney to appear on Bowles' behalf

at a scheduling conference; dismissing Bowles' case; and by denying

his motion for recusal. He also contends that the district court

abused its discretion by allowing the state attorney general to

appear pro hac vice on behalf of defendant Judge O'Neill; and that

the district court's dismissal denied Bowles his right of access to

the courts. He finally claims he was improperly denied an

evidentiary hearing. We affirm the district court, deny motions

and impose sanctions.

Consolidation was not an abuse of discretion as the cases

involved common questions of law and fact. See Dillard v. Merrill

Lynch, Pierce, Fenner & Smith, Inc., 961 F.2d 1148, 1161 (5th Cir.

1992), cert. denied, 506 U.S. 1079 (1993).

The district court may dismiss a complaint upon its own motion

for failure to state a claim prior to the filing by the defendant

of a motion to dismiss. See Shawnee Int'l, N.V. v. Hondo Drilling

Co., 742 F.2d 234, 236 (5th Cir. 1984).

The district court did not err by failing to enforce discovery

against Reynolds because Reynolds was never served and was thus not

a party in the case. See Federal Sav. & Loan Ins. Corp. v. Tullos-

Pierremont, 894 F.2d 1469, 1473-74 (5th Cir. 1990).

Allowing the state attorney general to appear pro hac vice on

behalf of defendant Judge O'Neill was not an abuse of discretion.

See In re Evans, 524 F.2d 1004, 1007-08 (5th Cir. 1975); Tex. Gov't

Code Ann. § 74.141 (West 1988).

2 Bowles' argument that he was denied his right of access to the

courts lacks a factual basis in the record.

The district court did not err by refusing to allow an

attorney with whom Bowles had a conflict of interest to appear on

Bowles' behalf at a scheduling conference.

Bowles' complaint was properly dismissed because Bowles'

claims are inextricably intertwined with issues being considered by

a state court. See Eitel v. Holland, 798 F.2d 815, 818 (5th Cir.

1986).

It was not an abuse of discretion to deny Bowles' motion for

recusal as Bowles presented no fact suggesting that Judge Hoyt's

impartiality might reasonably be questioned. See Liteky v. United

States, 114 S. Ct. 1147, 1157-58 (1994).

Because the district court properly dismissed Bowles'

complaint, the court did not err by refusing to conduct an

evidentiary hearing.

The judgment of the district court is AFFIRMED and appellees'

motion to dismiss the appeal for lack of jurisdiction is DENIED.

Bowles previously has been warned by this court that he may be

sanctioned for filing more frivolous pleadings. We find this

appeal frivolous. Accordingly, Bowles is sanctioned $100 for his

failure to comply with this court's July 1995 order not to

prosecute frivolous matters in this court. Appellee Schwarz's

motion for the imposition of sanctions and Bowles' motion for an

extension of time to respond are DENIED as unnecessary.

AFFIRMED; MOTIONS DENIED; SANCTIONS IMPOSED.