Fernon v. Smajstrala

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 15, 1999
• Docket: 98-10464
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 97-11395 Summary Calendar __________________

LEE PRICE FERNON,

Plaintiff-Appellant, versus

ROBIN SMAJSTRALA, ET AL.,

Defendants-Appellees.

No. 98-10276 Summary Calendar __________________

Plaintiff-Appellant,

versus

ROBIN SMAJSTRALA, ET AL., Defenants-Appellees.

No. 98-10464 Summary Calendar

ROSENDO RODRIGUEZ, JR.,

Appellant,

ROBIN SMAJSTRALA ET AL.,

Defendants-Appellees. -2-

- - - - - - - - - - Appeals from the United States District Court for the Northern District of Texas USDC No. 7:97-CV-25-X - - - - - - - - - -

July 15, 1999

Before DAVIS, DUHE’, and PARKER, Circuit Judges.

PER CURIAM:*

Before the court are three consolidated appeals. In No. 97-

11395, Lee Price Fernon appeals from the district court’s summary

judgment in favor of the defendants in his civil rights complaint

brought pursuant to 42 U.S.C. § 1983. Fernon, an attorney,

brought the suit against Baylor County Judge Robin Smajstrala;

Dick Wirz, the mayor of Seymour, Texas; Floyd Burke, the police

chief in Seymour; Mike Griffin, a Seymour police officer; Jo Ann

Farr, a neighbor of Fernon’s; and Lynn Fernon, his ex-wife.

Fernon alleged in his complaint that the defendants conspired to

encourage Fernon’s children to accuse him falsely of physical

abuse so that false criminal charges would be brought against him

which would destroy his career as the county attorney.

We have reviewed the record and the briefs of the parties,

and we hold that the district court did not err in construing the

defendants’ motion to dismiss pursuant to Fed. R. Civ. P.

12(b)(6) as one for summary judgment under Fed. R. Civ. P. 56.

See Young v. Biggers, 938 F.2d 565, 568 (5th Cir. 1991). Nor was

the rule’s ten-day notice requirement violated by the court’s

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. -3-

construction because, prior to the hearing on the motions, Fernon

had submitted an affidavit to be considered by the court. See

Washington v. Allstate Ins. Co., 901 F.2d 1281, 1284 (5th Cir.

1990). Because there was no genuine issue of material fact, only

the conclusional allegations of Fernon, the district court did

not err in thereafter granting the defendants’ motion for summary

judgment. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075

(5th Cir. 1994) (en banc).

In No. 98-10464, we uphold the district court’s award of

attorneys’ fees and its imposition of a monetary sanction against

Fernon and his attorney, Rosendo Rodriguez, Jr. See Thomas v.

Capital Security Services, Inc., 836 F.2d 866, 872 (5th Cir.

1988) (en banc); Vaughner v. Pulito, 804 F.2d 873, 878 (5th Cir.

1986). Nor did the district court err in imposing a sanction

barring Fernon from filing any pleading in the Northern District

of Texas without the prior permission of the district court. See

Pressey v. Patterson, 898 F.2d 1018, 1021 and n.2 (5th Cir.

1990).

Because Fernon fails to make the required showing of

judicial partiality, his challenge to the district court’s denial

of his recusal motion brought under 28 U.S.C. § 455(a) fails.

See United States v. Couch, 896 F.2d 78, 82 (5th Cir. 1990).

Similarly, the district court did not err by denying Fernon’s

motion to disqualify defense attorneys. See In re: American

Airlines, Inc., 972 F.2d 605, 609, 611 (5th Cir. 1992). Finally,

in No. 98-10276, Fernon fails to show that the district court

erred by imposing a $5000 bond pursuant to Fed. R. App. P. 7 in -4-

order to proceed with his appeal. See Ehm v. Amtrack Bd. of

Directors, 780 F.2d 516, 517 (5th Cir. 1986); Sckolnick v.

Harlow, 820 F.2d 13, 15 (1st Cir. 1987).

Because they are without arguable merit, Nos. 97-11395 and

98-10464 are DISMISSED as frivolous. See Howard v. King, 707

F.2d 215, 219-20 (5th Cir. 1983); 5th Cir. R. 42.2. The district

court’s decision in No. 98-10276 is AFFIRMED.